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Karnataka High Court · body

2006 DIGILAW 130 (KAR)

YERIBASAVANA GOUDA v. STATE OF KARNATAKA

2006-02-01

V.G.SABHAHIT

body2006
ORDER These two revision petitions under Section 121-A of the Karnataka Land Reforms Act, 1961 are directed against the order passed by the District Land Reforms Appellate Authority, Benary, dated 31-8-1989, setting aside the order passed by the Land Tribunal, Bellary, dated 11-9-1986 and holding that the landlord has failed to prove that he was getting the land in question cultivated through hired labourers and that the tenant has also failed to prove that he was cultivating the land as such on 1-3-1974 and further holding that the land is vested with the Government. Both the tenant and the landlord are aggrieved by the order passed by the District Land Reforms Appellate Authority. The 0tenant is aggrieved by the order passed by the Land Reforms Appellate Authority, as it has set aside the order passed in favour of the tenant conferring occupancy right and has held that the land vests with the Government and the legal representatives of the landlord, are aggrieved by the order of the Appellate Authority, wherein the Appellate Authority has held that the said land was tenanted on 1-3-1974 though the tenant has failed to prove that he was cultivating the land as on 1-3-1974 and therefore, the land has vested with the State Government for distribution of the same among the landless persons. The essential facts of the case leading upto these revision petitions are as follows.- 2. Sri Dodda Veerabhadragowda, the husband of petitioner 3 and the father of the petitioners 1 and 2 in L.R.R.P. No. 6146 of 1989 filed Form 7 before the Land Tribunal, Bellary, seeking conferment of occupancy right under Section 48-A of the Karnataka Land Reforms Act, 1961 (hereinafter called as the 'Act') in respect of the land comprised in Sy. No. 19-E/2 measuring 8.74 acres situate at Paramadevanahalli. The Land Tribunal by order dat.ed 24-10-1983, conferred occupancy right in favour of the said applicant-tenant. Being aggrieved by the same, W.P. No. 21330 of 1983 was filed by the Sri Sanjeeva Reddy-landlord. The matter was remitted by this Court to the Land Tribunal after setting aside the order dated 24-10-1983 passed by the Land Tribunal. After remand, the Land Tribunal again conferred occupancy right in favour of the legal heir of Sri Dodda Veerabhadragouda-Errabasavanagouda by order dated 11-9-1986. The matter was remitted by this Court to the Land Tribunal after setting aside the order dated 24-10-1983 passed by the Land Tribunal. After remand, the Land Tribunal again conferred occupancy right in favour of the legal heir of Sri Dodda Veerabhadragouda-Errabasavanagouda by order dated 11-9-1986. Being aggrieved by the said order passed by the Land Tribunal, R.A. No.5 of 1987 was filed by the landlord before the District Land Reforms Appellate Authority, Bellary. The Appellate Authority by its order dated 31-8-1989, set aside the order passed by the Land Tribunal holding that the tenant has failed to prove that he was the tenant of the land as on 1-3-1974. The Appellate Authority has further held that the landlord has failed to prove that he was personally cultivating the land and the land was tenanted and wherefore, the land would vest with the Government for distribution to landless persons. Being aggrieved by the said order of the Appellate Authority, the legal representatives of the landlord and tenant have preferred these revision petitions. 3. I have heard the learned Counsels appearing for the parties. 4. Learned Senior Counsel appearing for the petitioners in L.R.R.P. No. 6146 of 1989 submitted that the Land Tribunal after considering the material on record and having regard to the fact that the landlord has failed to substantiate the contention that he was getting the land cultivated through Honnurappa as hired labourer, conferred occupancy right in favour of the 1st petitioner-legal heir of the original applicant and the said finding of fact has been wrongly set aside by the Appellate Authority as no additional evidence was adduced before the Appellate Authority and the Land Tribunal has rightly relied upon the statement of Honnurappa, who according to the landlord was cultivating the land on behalf of the landlord and when the landlord has failed to substantiate the contention that he was cultivating the land through Honnurappa by engaging hired labourers and having regard to the entries in the record of rights, the Tribunal was justified in conferring occupancy right in favour of the applicant and the Appellate Authority was not justified in holding that the applicant has failed to prove that he was cultivating the land as a tenant on 1-3-1974. Therefore, the order passed by the Appellate Authority holding that the applicant has failed to prove that he was cultivating the land as a tenant on 1-3-1974 and that the land vests with the Government is liable to be set aside and the order passed by the Land Tribunal may be restored. 5. On the other hand, the learned Senior Counsel appearing for petitioner 1(a) in L.R.R.P. No. 5777 of 1989, legal representative of the landlord, submitted that the Appellate Authority has held that the order of the Land Tribunal cannot be sustained as the statement recorded during spot inspection could not be relied upon as the spot inspection was held without notice and the purpose of the spot inspection is to appreciate the evidence and not to collect evidence from the party and when the evidence recorded at the time of spot inspection is excluded, there is no other material on record to prove that the applicant-Dodda Veerabhadra Gouda has proved that he was cultivating the land as a tenant on 1-3-1974 and wherefore, the Appellate Authority was justified in setting aside the order passed by the Land Tribunal. Learned Senior Counsel further submitted that there is no burden on the part of the landlord to prove that he was personally cultivating the land and therefore, the order passed by the Appellate Authority holding that the landlord was not cultivating the land personally and the land was tenanted and the land vested with the State Government for distribution among the landless persons, is clearly perverse and the order of the Appellate Authority is liable to be set aside only insofar as it relates to the direction given that the land vests with the Government for distribution of the same among the landless persons and the order passed by the Appellate Authority setting aside the order passed by the Land Tribunal has to be confirmed. 6. Learned Counsel appearing for the contesting respondents in L.R.R.P. No. 5777 of 1989 submitted that the order of the Appellate Authority insofar as it directs that the land was vested with the Government is perverse and arbitrary and the same is liable to be set aside. 6. Learned Counsel appearing for the contesting respondents in L.R.R.P. No. 5777 of 1989 submitted that the order of the Appellate Authority insofar as it directs that the land was vested with the Government is perverse and arbitrary and the same is liable to be set aside. Learned Counsel further submitted that the Land Tribunal has rightly relied upon the statement of Honnurappa, who according to the landlord was cultivating the land on behalf of the landlord and having regard to the fact that the landlord has failed to substantiate the contention that he was getting the land cultivated through Honnurappa as hired labourer, conferred occupancy right in favour of the 1st respondent-legal heir of the original applicant and the said finding of fact has been wrongly set aside by the Appellate Authority and therefore, the order passed by the Appellate Authority holding that the applicant has failed to prove that he was cultivating the land as a tenant on 1-3-1974 and that the land vests with the Government is liable to be set aside and the order passed by the Land Tribunal may be restored. 7. Learned High Court Government Pleader appearing for respondent 1 in L.R.R.P. No. 5777 of 1989 and respondents 1 and 2 in L.R.R.P. No. 6146 of 1989 submitted that since the applicant has failed to prove that he was the tenant of the land as on 1-3-1974 and the material on record shows that the land was tenanted, though not cultivated by the applicant as on 1-3-1974, the Appellate Authority was justified in holding that the land was vested with the Government. 8. I have considered the contentions of the learned Counsels appearing for the parties with reference to the material on record. 9. It is dear from a perusal of the material on record including the original proceeding maintained by the Land Tribunal and the Appellate Authority that Dodda Veerabhadragouda, son of Yerribasavana Gowda, filed an application for conferment of occupancy right in respect of land bearing Sy. 9. It is dear from a perusal of the material on record including the original proceeding maintained by the Land Tribunal and the Appellate Authority that Dodda Veerabhadragouda, son of Yerribasavana Gowda, filed an application for conferment of occupancy right in respect of land bearing Sy. No. 19E/2, measuring 8.74 acres situate a Paramadevanahalli, before the Land Tribunal, Bellary and occupancy right was granted by order dated 24-10-1983 and the same was set aside in W.P. No. 21330 of 1983 and the matter was remitted to the Land Tribunal and thereafter, the Land Tribunal on the basis of the statement of Honnurappa and the other witnesses and on the basis of the entries in the record of rights, held that the legal heirs of the applicant have proved that the applicant was the tenant of the land in question on 1-3-1974 and accordingly conferred occupancy right in favour of Errabasavana Gowda-legal heir of Dodda Veerabhadragouda by order dated 11-9-1986. It is clear from a perusal of the material on record that the landlord contended that the applicant was not a tenant of the land and the land was being cultivated by the landlord through Honnurappa by engaging hired labourers and the Land Tribunal has proceeded on the basis that Honnurappa himself has stated in his statement that he did not know the landlord. However, the material on record shows that the statement of Honnurappa was recorded not before the Land Tribunal, but, at the time of spot inspection, which was conducted on 16-1-1986 and the material on record also shows that on the said day, the land had ceased to be an agricultural land and there was a factory in the premises and no notice was issued to the landlord before conducting spot inspection. It is well-settled that the statement recorded at the time of local inspection, cannot be the basis for conferring occupancy right as the said local inspection was itself conducted without any notice to the landlord in the present case and the landlord had no opportunity to cross-examine the witnesses, whose statement was recorded during local inspection and unless the witnesses are examined before the Land Tribunal and subjected to cross-examination, the statement given by them during the spot inspection cannot be substantive evidence, which can be relied upon by the Land Tribunal for recording its finding as to whether the tenant was cultivating the land on 1-3-1974. The Tribunal has conducted spot inspection on 16-1-1986, on which date, the land had already been acquired and the material on record shows that a cement factory has come up in the land in respect of which occupancy right is claimed. However, the finding as to whether the applicant was a tenant as on 1-3-1974 would be relevant as the same would enable him to claim the compensation awarded for the acquisition of the land, if he is held to be a tenant as on 1-3-1974. The Appellate Authority has rightly held that the statement of Honnurappa recorded at the time of spot inspection, which has been held without notice to the landlord and as a result of which, the landlord had no opportunity to cross-examine Honnurappa, could not be relied upon by the Land Tribunal and once the said evidence is eschewed, there is no other material on record to show that the applicant-Dodda Veerabhadragowda was cultivating the land as on 1-3-1974. However, the finding of the Appellate Authority that the land has vested with the Government as the land was tenanted on 1-3-1974 though the tenant-applicant has failed to prove that he was cultivating the land on 1-3-1974, is clearly perverse and arbitrary as it is clear that the reason assigned by the Appellate Authority for holding that the land has vested with the Government for distribution to the landless persons is clearly perverse and contradictory as the Appellate Authority has held that the applicant-Doddaveerabhadra Gowda has failed to prove that he was cultivating the land as tenant on 1-3-1974 and the landlord has also failed to prove that he was cultivating the land through hired labourers as on 1-3-1974 and there is no material on record to show that the land was being cultivated by any other person and therefore, the order passed by the Appellate Authority insofar as it holds that the land has vested with the Government is clearly perverse and arbitrary and cannot be sustained and the same is liable to be set aside. The finding of the Appellate Authority that the Land Tribunal was not justified in relying upon the statement of Honnurappa recorded at the time of spot inspection which was held without notice to the landlord and as a result of which the landlord had no opportunity to cross-examine Honnurappa is justified and wherefore, the order passed by Land Tribunal cannot also be sustained. In view of the fact that the Appellate Authority has now been abolished, the question of remitting the matter to the Appellate Authority does not arise and this Court in exercise of power under Section 121-A of the Karnataka Land Reforms Act, cannot appreciate the material on record and confer occupancy right or reject the application filed holding that the applicant-tenant has failed to prove that he was tenant of the land as on 1-3-1974 and once it is held that the order passed by the Appellate Authority and the Tribunal are not in accordance with law, it is but, appropriate that the matter is remitted to the Land Tribunal, which is a fact finding authority to consider the application filed by the applicant-Dodda Veerabhadra Gowda, who is represented by the legal representatives- petitioners in L.R.R.P. No. 6146 of 1989 in accordance with law after affording opportunity to the parties to adduce additional evidence, if they so desire. Accordingly, pass the following order.- L.R.R.P. Nos. 6146 of 1989 and 5777 of 1989 are allowed. The order dated 31-8-1989 passed by the District Land Reforms Appellate Authority, Bellary, in RA. No.5 of 1987 and the order passed by the Land Tribunal, Bellary, dated 11-9-1986 in Case No. 2638 of 1976 are set aside and the matter is remitted to the Land Tribunal, Bellary, for fresh disposal of the application filed by the applicant-Dodda Veerabhadra Gowda, who is represented by the legal representatives, revision petitioners in L.RRP. No. 6146 of 1989 and to dispose of the application afresh after affording opportunity to the parties to adduce additional evidence, in accordance with law. All the contentions of the parties are kept open to be urged before the Land Tribunal.