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2007 DIGILAW 348 (KAR)

HUNASE CHOWDAPPA v. STATE OF KARNATAKA

2007-06-14

D.V.SHYLENDRA KUMAR

body2007
ORDER This writ petition in the second round is a fight between two brothers both of whom had sought for conferment of occupancy rights to an extent of 2 acres 4 guntas in Sy. No. 180 of Suntikoppa Village, Talaguppa Robli, Sagar Taluk. 2. While in the first round, the Tribunal had conferred occupancy rights exclusively in favour of the present writ petitioner, respondent 3-his brother had filed a writ petition before this Court questioning that order and the matter was remanded by setting aside the order of the Tribunal, in the present round, the Tribunal in terms of its order dated 17-7-2003 has conferred occupancy rights jointly in favour of the petitioner and respondent 3. Respondent 4-owner has been a more a silent spectator all along. 3. It is questioning such order, the present writ petition by one of the brothers contending that in fact in the earlier partition effected in the family, this particular piece of land had fallen to the share of the petitioner exclusively; that subsequently the respondent 3 had also filed a suit in O.S. No. 465 of 1990 claiming share in the property, but that suit had been dismissed in terms of order dated 22-3-2001 and the respondent 3 has now preferred the appeal in regular appeal which is said to be pending on the file of the Court of the Civil Judge (Senior Division) at Sagar and therefore, the Tribunal could not have conferred occupancy rights jointly in favour of the petitioner and respondent 3; that the Tribunal should have taken note of the development before the Civil Court and ought to have conferred occupancy rights exclusively in favour of the petitioner etc. 4. While it is true that it is not the domain of the Tribunal to examine the inter se rights of the members of the family and to record a finding on such rights, the Tribunal has the power to confer occupancy rights in favour of the person who is actually in cultivation of the land on the appointed day as a tenant. As regards this question, the Tribunal perhaps could not resolve and was of the view that the petitioner and respondent 3 being brothers and members of the same family and both claiming to be cultivating the land on the appointed day, thought it fit to confer occupancy rights jointly in their favour. 5. As regards this question, the Tribunal perhaps could not resolve and was of the view that the petitioner and respondent 3 being brothers and members of the same family and both claiming to be cultivating the land on the appointed day, thought it fit to confer occupancy rights jointly in their favour. 5. While it cannot be said that the Tribunal has passed an illegal order, insofar as inter se rights between the petitioner and respondent 3-brothers are concerned, it is a matter which comes within the exclusive jurisdiction of the Civil Court and not of the Land Tribunal. 6. In this view of the matter, after hearing Sri Krishnamurthy, learned Counsel for the petitioner and Sri N. Vijayakumar, learned Counsel appearing for respondent 3 on behalf of Sri B.R. Srinivasa Gowda, learned Counsel and Smt. Asha Kumbaragerimath, learned Government Pleader appearing for respondents 1 and 2, I am of the view that the controversy can be resolved if the parties are directed to abide by the outcome of the pending appeal before the Civil Court in the appeal preferred by the respondent 3. 7. The Civil Court shall, without being influenced by the determination by the Land Tribunal, proceed to determine inter se rights as between the two brothers treating the property as family property, as to whether it had already been partitioned earlier and had fallen to the share of one of the brothers. 8. Petitioner and respondent 3 to abide by the decision of the Civil Court and the benefit of conferring occupancy rights in respect of the suit properly will enure to the benefit of the parties in the manner as is determined by the Civil Court. 9. Writ petition is disposed of accordingly.