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2007 DIGILAW 165 (KAR)

HOOVACHARI v. GOVERNMENT OF KARNATAKA

2007-03-09

D.V.SHYLENDRA KUMAR

body2007
ORDER Though this matter is in the third round of litigation before this Court, the real issue has been missed both by the land Tribunal and by this Court in the earlier rounds. What was essentially a family dispute has been taken before the land Tribunal for claiming occupancy rights by misuse and abuse of the provisions of the Karnataka Land Reforms Act, 1961 (for short, 'the Ace). 2. The properties some of which were agricultural lands located in Godachikonda Village, Hirekerur Taluk, Haveri District were originally owned by Sannabasappa who had three sons, Kalappa-the applicant, Banappa and Bandappa his elder brothers. Kalappa chose to file an application in Form 7 before the land Tribunal impleading the children of his two deceased elder brothers claiming occupancy rights in respect of the family lands. 3. It was such an application filed in Form 7 which the land Tribunal considered in the first round and passed an order on 23-12-1978 conferring occupancy rights in favour of the applicant in respect of four survey numbers and rejected the claim in respect of Sy. No. 168/2B measuring 4 acres and Sy. No. 86/3 measuring 25 guntas. 4. As against this order, the applicant himself was aggrieved and came up before this Court contending that rejection part of the order of the land Tribunal was bad. This Court remanded the matter to the land Tribunal on the premise that there was no proper enquiry etc. 5. In the second round, the Tribunal found that there was no relationship of landlord and tenant as parties were all members of one family starting from the common ancestor Sannabasappa and accordingly rejected Form 7 application in terms of its order dated 15-3-1989 (copy at Annexure-D). 6. The writ petitioner again approached this Court by filing Writ Petition No. 25180 of 1991 which was allowed and the matter was remanded yet again for proper enquiry etc. 7. On the third occasion, the land Tribunal made an order converse to the order passed by it in the first round. While in respect of four survey numbers for which tenancy rights had been rejected in the first round were granted in favour of the applicant, two survey numbers in respect of which land Tribunal had granted tenancy rights in the first round rejected this time. 8. While in respect of four survey numbers for which tenancy rights had been rejected in the first round were granted in favour of the applicant, two survey numbers in respect of which land Tribunal had granted tenancy rights in the first round rejected this time. 8. It is against this order of the land Tribunal dated 10-4-2002 (copy at Annexure-F), the present writ petition. 9. I have heard Sri Laxman T. Mantagani, learned Counsel for the petitioner in W.P. No. 25871 of 2002 who has very strongly contended that the Tribunal could not have rejected conferment of occupancy rights when there was virtually no resistance for the same; that the Tribunal has committed a serious error; that notwithstanding the parties being related to one another, the petitioner was entitled to claim registration of occupancy rights in view of the provisions of Section 4 of the Act as admittedly the petitioner was cultivating the land and the respondents did not come within the definition of the 'family' vis-a-vis the petitioner. 10. On the other hand, Sri Mogali, learned Counsel for respondents 3 to 5 and Sri Nandish, learned Counsel for respondent 4 have vehemently contended that the petitioner has only misused the process of the Act; that there was never any relationship of landlord and tenant between the parties; that the Tribunal has committed gross error in entertaining the application itself; that the parties were closely related, the subject lands were family properties and therefore the petitioner was neither a tenant nor a deemed tenant within the provisions of Section 4 of the Act; that the Tribunal should have rejected the application outright as had been done in the second round of the proceedings. 11. The relationship between the parties is not in dispute. When the application was filed by Kalappa Sannabasappa it is not disputed that his elder brothers were dead and only his children were made as party respondents in the Form 7 application. If so, it is virtually as against the brothers. There was nothing on record to indicate that the parties had partitioned the properties and thereafter a tenancy had been created in favour of the petitioner. 12. The revenue records produced by Sri Nadiga Shivanandappa, learned Government Pleader do not indicate anything of the nature of tenancy. The revenue entries also stood in the name of respondents as owners. There was nothing on record to indicate that the parties had partitioned the properties and thereafter a tenancy had been created in favour of the petitioner. 12. The revenue records produced by Sri Nadiga Shivanandappa, learned Government Pleader do not indicate anything of the nature of tenancy. The revenue entries also stood in the name of respondents as owners. The mode of cultivation as indicated in the revenue records has always been as own cultivation. 13. In a situation of this nature, I am of the view that the provisions of Section 4 of the Act does not come into playas ingredients of Section 4 is not even satisfied in the present case. 14. Section 4 of the Act reads as under: “4. Persons to be deemed tenants.-A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not.- (a) a member of the owner's family; or (b) a servant or a hired labourer on wages payable in cash or kind but not in crop share cultivating the land under the personal supervision of the owner or any member of the owner's family; or (c) a mortgagee in possession: Provided that if upon an application made by the owner within one year from the appointed day.- (i) the Tribunal declares that such person is not a tenant and its decision is not reversed on appeal; or (ii) the Tribunal refuses to make such declaration but its decision is reversed on appeal". 15. The question is not as to whether the petitioner and respondents answered the definition of 'family' as of now but who was in possession on the day when Form 7 application was filed. 16. It is virtually a contest amongst the brothers and instead of sharing the properties as a family property through partition or as agreed to, the petitioner has utilised the provisions of the Act to knock off the share of the other co-parceners of the family. The fact that the petitioner was the eldest male member of the family was in the position' of the kartha when he filed Form 7 application against his nephews cannot be lost sight of. 17. The fact that the petitioner was the eldest male member of the family was in the position' of the kartha when he filed Form 7 application against his nephews cannot be lost sight of. 17. The only material on which the Tribunal concluded about the petitioner being a tenant was a statement attributed to respondent 3, a cousin brother of the petitioner who generously conceded the tenancy claim of the petitioner. 18. Be that as it may, when the original application was filed by one brother as against his own nephews i.e., children of his elder brothers, I am of the definite view that this is not a situation where the provisions of Section 4 can be invoked for claiming deemed tenancy. 19. In the circumstances, I am of the view that as the dispute was essentially a family dispute for sharing family properties and not one involving a claim of tenancy, the land Tribunal does not get jurisdiction to entertain the application or to pass orders on the same for conferring occupancy rights on the applicant. 20. Though Sri Mantagani, learned Counsel for the petitioner would very fervently plead that the matter should be remanded to the Tribunal even for examining this aspect so that the petitioner will be in a position to place the material before the Tribunal about the possible earlier partition in the family, I am of the view it is a little late in the day to entertain such a request as the matter was before the Tribunal on three occasions and if such material had not been placed on such occasions, there is no reahson for permitting the same now. 21. Apart from that, I am of the definite view that when the application was filed in Form 7 in the year 1977, the claim was against the very brothers and their children. It cannot be entertained either for a tenancy claim or for a deemed tenancy. 22. In the circumstances, Writ Petition No. 25871 of 2002 is disposed of quashing the Order No. KLR.VLR.26+25, dated 10-4-2002 passed by the land Tribunal, Hirekerur (copy at Annexure-F) declaring that the Tribunal does not get jurisdiction to entertain Form 7 application and it is open to the parties to sort out their inter se disputes before a Civil Court or mutually as agreed to amongst themselves which perhaps is a better course of action. 23. 23. In this view of the matter, W.P. No. 24533 of 2002 is hereby allowed and the order of the land Tribunal stands quashed as indicated above. 24. Rule made absolute.