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2004 DIGILAW 435 (KAR)

K. N. Radhakrishna v. R. V. Bhaskar

2004-07-09

V.GOPALA GOWDA

body2004
ORDER V. Gopala Gowda, J.--Petitioner and his brothers purchased various lands from Smt. Nagarathnamma through her P.A. Holder Raja Venkataramana Setty on 12.9.1950. In the partition between them as per the decree in Arbitration Case No. 14/81, Sy. No. 4 measuring 2-14 acres of land situated in Ullalu village, Yeshwanthpur Hobli, Bangalore South Taluk fell to the share of the Petitioner. Petitioner states that the survey number of the land is wrongly mentioned as Sy. No. 3/4, which is not in existence. 2. Since the lands were inam lands, vested in the State Government in view of Section 3 of the Karnataka (Personal and Miscellaneous Inam) Inams Abolition Act of 1954. The Petitioner and his brothers Sreenivasa Gupta and Himantha Shetty (2nd Respondent) filed applications to register them as occupants under Section 5 of the Act and accordingly by an order dated 14.8.1964 they have been registered as occupants except the hand bearing Sy. Nos. 199 and 208. The claim in respect of these two lands had been rejected by the Special Deputy Commissioner, against which the Petitioner and his brother Srinivasa Gupta filed Appeal No. 3090 of 1965 in the Mysore Revenue Appellate Tribunal. 3. Another Appeal No. 2296 of 1968 filed by some other person who claimed a portion in Sy. No. 199, was clubbed with the aforesaid appeal. Both the appeals have been allowed by MRAT on 30.1.1970 setting aside the rejection order of the Special Deputy Commissioner and confirmed the registration of occupancy in respect of other lands. On the basis of the same, the Endorsement at Annexure-C dated 19.11.1969 was issued by the Additional Special Deputy Commissioner in which Sy. No. 3/4 is mentioned at Sl. No. 2, which according to the Petitioner it is Sy. No. 4. As per the Endorsement at Annexure-E, there is no land in Sy. No. 3/4. The Petitioner claims to be in possession and enjoyment of land bearing Sy. No. 4 to an extent of 2-14 acres and his name is entered both as Khatedar and possessor in the RTC records. 4. It appears that the share of Petitioner's brother Hemantha Shetty (2nd Respondent) was purchased by one Shivakumaraiah and since there was interference by him and his friend, suit in O.S. No. 104 of 1996 was filed by the Petitioner for grant of permanent injunction and the same was decreed after trial. 5. 4. It appears that the share of Petitioner's brother Hemantha Shetty (2nd Respondent) was purchased by one Shivakumaraiah and since there was interference by him and his friend, suit in O.S. No. 104 of 1996 was filed by the Petitioner for grant of permanent injunction and the same was decreed after trial. 5. On the basis of an application filed by the original owner Smt. Nagarathnamma on 30.5.1959 to register her as an occupant in respect of the lands including land bearing Sy. No. 4, the Land Tribunal passed order as per Annexure-E3 dated 12.4.1989 granting occupancy rights in her favour including the land in Sy. No. 4. The 2nd Respondent Hemantha Shetty brother of the Petitioner has challenged the said order in appeal before the erstwhile Land Reforms Appellate Authority on the ground that he was not a party to the proceedings and he had no opportunity, In view of abolition of the Appellate Authorities by deleting Section 18A of Karnataka Land Reforms Act, the appeal was got transferred and registered as W.P. No. 25765 of 1991 before this Court. The said writ petition was disposed of on 16.10.1997 setting aside the order of the Land Tribunal and the matter was remanded with a direction to implead the 2nd Respondent herein and to give opportunity to him before determining the claim of Smt. Nagarathnamma. Against the order of the learned Single Judge in the writ petition, the legal representatives of deceased Nagarathnamma the first Respondent herein filed W.A. No. 6009 of 1997 on the ground that 2nd Respondent Hemantha Shetty herein had not filed any application either before the Land Tribunal or Special Deputy Commissioner for grant of occupancy rights in respect of the land in question and that he was not at all a party before the Land Tribunal and therefore it was prayed for setting aside the order passed in the Writ Petition. The said writ appeal was disposed of on 15.7.1998 directing the Land Tribunal to decide whether he had filed application or not and if application is filed, to consider the same to the extent claimed therein. By another order dated 26.11.1998 the order dated 15.7.1998 had been modified and it was ordered that the direction issued to the Land Tribunal shall be read as direction to the Deputy Commissioner. 6. By another order dated 26.11.1998 the order dated 15.7.1998 had been modified and it was ordered that the direction issued to the Land Tribunal shall be read as direction to the Deputy Commissioner. 6. On the basis of the aforesaid direction of this Court, the Special Deputy Commissioner has called for the report of the Tahsildar as to whether the second Respondent has preferred any claim in respect of the land in question. In his letter dated 11.11.1998 the Tahsildar has specifically reported that Hemantha Shetty has not filed any application. After considering the order of the Land Tribunal at Annexure-E3 dated 12.4.1989 registering occupancy rights in favour of deceased Nagarathnamma, the Special Deputy Commissioner has confirmed the same vide his order at Annexure-F dated 25.1.1999. The Petitioner challenged the said order before the Karnataka Appellate Tribunal in Appeal No. 127 of 1999 on the ground that since he is in possession and enjoyment of the land, the Special Deputy Commissioner should have issued notice to him. But the Appellate Tribunal has dismissed the appeal and confirmed the order of the Land Tribunal. Aggrieved by the same the Petitioner has filed this writ petition seeking to quash the order of the Special Deputy Commissioner and KAT and to direct the Special Deputy Commissioner to implead him and give opportunity to put forth his case. 7. Sri G.D. Aswathnarayana, learned Counsel for the Petitioner contends that since deceased Nagarathnamma sold the lands to the Petitioner and his brothers through her power of attorney holder, she had no right to claim registration of occupancy rights for the same lands. That apart, the Land Tribunal had no jurisdiction to register Smt. Nagarathnamma as an occupant of the lands in question as Petitioner and his brothers have been registered as occupants earlier for the same lands. He further submits that the 3rd Respondent Special Deputy Commissioner has passed the impugned order in violation of principles of natural justice. The learned Counsel further contends that the KAT has not applied its mind to the facts of the case while passing the impugned order. 8. Per contra, Sri H. Subramanya Jois, learned Senior Counsel along with Senior Counsel Smt. Pramila M. Nesargi, made submissions justifying the impugned order. The learned Counsel further contends that the KAT has not applied its mind to the facts of the case while passing the impugned order. 8. Per contra, Sri H. Subramanya Jois, learned Senior Counsel along with Senior Counsel Smt. Pramila M. Nesargi, made submissions justifying the impugned order. It is contended that the Petitioner has locus standi to question the impugned order as he did not challenge the order passed by the Land Tribunal in granting occupancy rights in favour of Smt. Nagarathnamma. It is contended that this Court remanded the case at the instance of the second Respondent only to find out whether Hemantha Shetty filed application or not claiming occupancy rights in respect of the land in question and since it was found that he had not filed application, the Petitioner has no right to question the correctness of the impugned order. It is also submitted by them that the Petitioner is not diligent in prosecuting the case and the writ petition is liable to be dismissed for delay and laches. 9. It is not in dispute that deceased Smt. Nagarathnamma sold the lands in favour of the Petitioner and his brothers. Annexure-A5 is the order of the Additional Special Deputy Commissioner registering Petitioner's brother K.K. Srinivasa Gupta as permanent tenant under Section 5 of Mysore (Personal and Miscellaneous Inams) Inams Abolition Act, 1954. Item No. 2 therein I Sy. No. 3/4 and the extent is 4-14 acres. That order has become final. In the Endorsement at Annexure-C dated 19.11.1969 Petitioner's brother is registered as Holder and Khatedar of this land and other lands. But, as per the Endorsement at Annexure-E1, the land is not poded as Sy. No. 3/4. According to the Petitioner, it is not Sy. No. 3/4 but it is Sy. No. 4. In the Pahani copy produced as Annexure-D3 Sy. No. 4 measuring 4-16 is shown in the names of Petitioner's brothers. In the mutation extract at Annexure-D2 Sy. No. 4 is shown to have been entered in the name of K.N. Radhakrishna as per the partition decree of the Civil Court. Therefore, Petitioner claims that he is the owner of land bearing Sy. No. 4. 10. No. 4 measuring 4-16 is shown in the names of Petitioner's brothers. In the mutation extract at Annexure-D2 Sy. No. 4 is shown to have been entered in the name of K.N. Radhakrishna as per the partition decree of the Civil Court. Therefore, Petitioner claims that he is the owner of land bearing Sy. No. 4. 10. From a plain reading of the order of Land Tribunal at Annexure-E3 dated 12.4.1989 it is clear that occupancy rights had been granted in favour of deceased Smt. Nagarathnamma on the basis of the sale deed dated 10.1.1947 (Annexure-A4) by which she purchased the lands and the Release Deed dated 7.5.1959 executed by the co-owner releasing her rights in favour of Smt. Nagarathnamma. It is clear that Smt. Nagarathnamma suppressed before the Land Tribunal the sale deed at Annexure-A1 dated 12.9.1958 executed by her through the power of attorney in favour of the Petitioner and his brothers. The Chairman of the Land Tribunal has rightly disagreed with the views of the Members and held that he was not in favour of the applicant Smt. Nagarathnamma as the revenue records stand in the name of Petitioner's brothers. However, Smt. Nagarathnamma was registered as an occupant of the lands, including Sy. No. 4, on the basis of majority decision of the Members. 11. Eventhough the revenue records stood in the name of Petitioner in respect of land bearing Sy. No. 4, neither Smt. Nagarathnamma arrayed the Petitioner as Respondent before the Land Tribunal nor the Tribunal issued notice to the Petitioner, who is the person interested in the land. The Special Deputy Commissioner and the KAT have not applied their minds to the aforesaid aspects while dismissing the appeals under Annexures-F and F2. 12. It is no doubt true that Petitioner has not challenged the order of the Land Tribunal granting occupancy rights in respect of the lands in question in favour of Smt. Nagarathnamma. However, his brother Hemantha Shetty challenged it before the Land Reforms Appellate Authority and this Court. Even after remand order was passed, by this Court the Petitioner has failed to contest the matter. However, the Petitioner is aggrieved person under Section 28 of the Act of 1954 of the impugned order passed both by the Special Deputy Commissioner and KAT. Thus, there is lapse on his part in not prosecuting the case. Even after remand order was passed, by this Court the Petitioner has failed to contest the matter. However, the Petitioner is aggrieved person under Section 28 of the Act of 1954 of the impugned order passed both by the Special Deputy Commissioner and KAT. Thus, there is lapse on his part in not prosecuting the case. That by itself will not take away his right to protect his property. As compensation for the lapse on his part, Mr. G.D. Aswathnarayana submits that Petitioner will deposit Rs.20,000/- towards costs to the successful Respondent, in case the final decision goes against him. To afford opportunity to the Petitioner to put forth his case, the matter has to be remanded. 13. Another reason for remanding the case is, Petitioner's brother was registered as permanent tenant in respect of Sy. No. 3/4. But, as per the endorsement at Annexure-E1, there is no such survey number. According to the Petitioner Sy. No. 3/4 is nothing but Sy. No. 4. There are no clear documents produced in this regard by the Petitioner. Either the DC/KAT have made any attempt to ascertain the correct survey number. In order to find-out the same, Government Pleader was directed to produce the survey settlement records. He submits that though he conveyed the same to the concerned, he could not secure the same except producing some documents which do not throw light on the issue. Hence, to give a categorical finding as to the correct survey number of the land and also find out correctness of the claim of the parties the matter has to be remanded to the Special Deputy Commissioner, as this Court is of the view that the impugned order passed by him is not in compliance with the directions issued by this Court, as he has simply acted upon the report of the Tahsildar regarding filing of the application, he should have find out the same from his file pertaining to the grant of occupancy rights in respect of the lands in favour of the Petitioner and his brothers long back in the year 1964 and therefore the finding recorded in this regard by him is erroneous, which order is affirmed by the KAT without applying its mind to the facts and evidence on record and therefore the order passed by it is also vitiated in law. Further in view of the claim of the Petitioner that he is the owner of the land in question on the basis of the Arbitration Award, which is accepted as Decree of the Civil Court and also on the basis of the RTC records his name finds a place both as khatedar and possessor and placed strong reliance upon the judgment and Decree of the Civil Court. For the above reasons this Court is of the view that the Petitioner has to be heard by the Special Deputy Commissioner before determining the claim of deceased Nagarathnamma even though there is lapse on this part, as the same can be compresented (sic confronted) and therefore this Court is of the view that the impugned orders are liable to be quashed and the matter has to be remanded back to the Special Deputy Commissioner for considering the claim and counter claim of the parties after affording opportunity to them. 14. The Petitioner has filed I.A.I/2003 to implead the purchasers of land in Sy. No. 4 and the Land Acquisition Officer. Since the matter is to be remanded, they need not be brought on record in this case. However, the Petitioner may file the impleading application before the 3rd Respondent when he takes up the matter. Hence, I.A.I is rejected for the time being. 15. For the reasons stated above, the writ petition is allowed and the impugned orders are quashed. The matter is remanded to the 3rd Respondent with a direction to determine the right of the parties in the light of the observations made in this order. 16. The Petitioner shall deposit a sum of Rs.20,000/- before the 3rd Respondent, which shall be payable to the successful party, when the litigation attains final Decision.