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2008 DIGILAW 395 (KAR)

Lakke Gowda v. H. Visvesw ara jois (dead) by Lrs.

2008-07-28

SUBHASH B.ADI

body2008
ORDER This revision petition is directed against the order passed on 8th December, 1988 on the file of Land Reforms Appellate Authority, Hassan District, Hassan in No. (LRAA).RA.468/1986. 2. Brief facts leading to this case are: The land bearing Sy. No. 42 measuring 5 acres 30 guntas situated at Cholamballi Village, Chennarayapatna Taluk is a religious and charitable inam land and covered under the provisions of Mysore (Religious and Charitable) Inams Abolition Act, 1955 (hereinafter referred to as 'the Act'). 3. Petitioner herein had filed an application for grant of occupancy rights as a tenant under Section 9 of the Act whereas, one H. Prahlada Shastri alleged to have filed an application under Section 6-A of the Act. 4. Earlier, the Special Deputy Commissioner in exercise of his power under the provisions of the Act, had passed an order on 6-2-1976 granting occupancy rights in favour of the petitioner herein. The said order was appealed before the Appellate Tribunal in Appeal No. 1254 of 1976 by H. Prahlada Shastri. The Appellate Tribunal by its order dated 8-11-1977 allowed the appeal and set aside the order of the Special Deputy Commissioner and directed him to club the application of H. Vishveshwara Jois and 4th respondent and hear the same. Thereafter, the matter was transferred to the Land Tribunal in view of the change of jurisdiction. The Land Tribunal on enquiry passed an order dated 7-51986 granting occupancy rights in favour of the petitioner herein. The said order was called in question by the respondent 1 herein in W.P. No. 10649 of 1986 and in view of the Constitution of the Land Reforms Appellate Authority, the writ was transferred to the Appellate Authority and it was numbered as appeal. 5. Before the Appellate Authority, on behalf of the petitioner herein, petitioner and two other witnesses were examined and produced documents. 6. The Appellate Authority gave a finding that, the respondent 1 herein has not filed any application, however, his brother H. Prahlada Shastry has filed an application and held that the respondent 1 and the sons of Prahlada Shastry are entitled for occupancy rights under Section 6-A of the Act. 7. Learned Counsel for the petitioner submitted that, the revision itself is not maintainable, as admittedly, the respondent 1 is not an applicant as found by the Appellate Authority. 7. Learned Counsel for the petitioner submitted that, the revision itself is not maintainable, as admittedly, the respondent 1 is not an applicant as found by the Appellate Authority. It is also submitted that, grant of occupancy rights to the respondent 1 and one Chandrashekar, who is none other than the Power of Attorney Holder of respondent 1, is without any application made by them. Further submitted that, in order to claim occupancy rights under Section 6-A of the Act, respondent 1 is required to prove that, he is the Pujari or Archak or rendering religious service to the religious institution and must have cultivated the land personally for a period not less than 3 years prior to the date of vesting by contributing his own physical labour or that of the members of his family and enjoying the benefits of any land comprised in the inam of such institution without paying rent as such in money of kind to that institution in respect of such land. Referring to Section 6-A of the Act, learned Counsel for the petitioner submitted that, the Appellate Authority has n'9t given any finding as to whether, as on the date of vesting, the respondent 1 was an Archak or Pujari or rendering services to the religious institution nor there is any finding as to whether, he or his family members were personally cultivating the land in question next before 3 years from the date of vesting of the land. It is also submitted that, even the documents relied upon by the respondent 1, they do not prove the possession of the respondent 1 as on the date of vesting of the property or next before 3 years of the same. Even the evidence does not prove, whether the first respondent is an Archak or Pujari or rendering services in any other capacity. It is submitted that, even the witnesses, who have been examined in support of the case, their evidence do not prove the possession, except saying that the respondent is also an Archak. Referring to the evidence of P.Ws. 1 to 3, learned Counsel for the petitioner submitted that, it has come in the evidence of these witnesses that, respondent 1 is staying in Bangalore. Referring to the evidence of P.Ws. 1 to 3, learned Counsel for the petitioner submitted that, it has come in the evidence of these witnesses that, respondent 1 is staying in Bangalore. When there is no evidence as regard to the rendering service as Archak and when there is no evidence as regard to the personal cultivation, grant of occupancy rights in their' favour is without any material. Further, it is stated that the revision is filed by the person, who is not an applicant. 8. Learned Counsel appearing for the respondent 1 submitted that, Prahlada Shastry is none other than the brother of respondent 1. An application is filed by Prahlada Shastry and is a member of the joint family. His application enures to the benefit of other members of the family. In this regard, he relied on the evidence of P.Ws. 1 to 3 and also the documents produced, to show that, these witnesses and the documents do prove that the respondent 1 is an Archak and has been cultivating the land personally. 9. Learned Government Pleader supported the order of the Appellate Authority. 10. The questions that arise for consideration in this revision petition are as under: 1. Whether the respondent 1 has proved that, he was Archak as on the date of vesting? 2. Whether he or his family members had been cultivating the land next before 3 years from the date of vesting as required under Section 6-A of the Act? 3. Whether the petitioner herein proves that, he is the tenant of the land in question and has been cultivating the land in terms of Section 9 of the Act? 11. The Appellate Authority has relied on the documents such as, Pahani Patra for the years 1961-62, 1970-71, which shows the name of the petitioner cultivating the land personally and it shows entry "swantha" (kannada word) in column (21). As regards to the claim of the respondent 1, respondent 1 apart from relying on the oral evidence of two witnesses has produced Ex. A. 2, which pertains to the year 1961-62, showing payment of Kandaya by Prahlada Shastry. As per Ex. B.1, the Kandaya pertains to the year 1946 and the other documents produced as Exs. A.4 and A.5, they relate to the years 1962-63 and 1963-64. A. 2, which pertains to the year 1961-62, showing payment of Kandaya by Prahlada Shastry. As per Ex. B.1, the Kandaya pertains to the year 1946 and the other documents produced as Exs. A.4 and A.5, they relate to the years 1962-63 and 1963-64. These documents do not clearly establish, as to whether the respondent 1 or his family members were cultivating the land personally in terms of Section 6-A of the Act. Further, the Appellate Authority has disbelieved the evidence of the petitioner particularly pahani extract of relevant period to 1970-71, 1972-73 and 1973-74. It is not in dispute that, the vesting took place on 1-7-1970 under the provisions of the Act. If that is so, as far as respondent 1 is concerned, he has to prove that: (i) he is entitled for claim of occupancy rights on the basis of the application filed by Prahlada Shastry; (ii) he has to prove that, he or his family members were in personal cultivating of the land for last 3 years prior to the vesting of the land; and (iii) he has to prove that, he or his family members were performing Archana or puja of the deity as on the date of vesting and prior thereto. Insofar as petitioner is concerned, petitioner is required to prove that, he has been cultivating the land as a tenant as on the date of vesting of the land. 12. Since the Appellate Authority has referred to the documents, but has not given finding as regard to the cultivation by the respondent 1 or his family members as on the date of vesting and prior thereto and also as regard to performing of Archana or duties of Archak as claimed by. 13. Since the records produced by the Government Pleader do not show all these materials and it is not possible for this Court to give a finding in the absence of relevant records, it is in this context, the matter requires a remand once again to the Deputy Commissioner, who is an authority under the provisions of the Act. Accordingly, the revision petition is allowed. Accordingly, the revision petition is allowed. The matter is remitted to the Deputy Commissioner, Hassan District, Hassan for reconsideration of the matter on the following issues: (1) The Deputy Commissioner must give a finding, as to whether the respondent I-Vishveshwara Jois can claim occupancy rights based on an application alleged to have been filed by the Prahlada Shastry by considering the relevant document and the evidence? (2) Whether the respondent 1 has proved that, he or his family members have been in possession and personal cultivation of the land as on the date of vesting and three years prior thereto? (3) Whether the respondent 1 has proved that, he or his family members were performing the service as Archaka as on the date of vesting and prior thereto? (4) Whether the petitioner is a tenant and has been cultivating the land as a tenant as on the date of vesting or prior thereto? On these issues, the Deputy Commissioner has to give a clear finding for granting occupancy rights. Since this matter pertains to the year 1974, I am of the opinion that, the Deputy Commissioner must dispose of the case as early as possible not later than six months from the date of receipt of the copy of this order.