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2012 DIGILAW 646 (KAR)

Rukhyabi v. Land Tribunal (1st) Karkal

2012-08-07

K.L.MANJUNATH, V.SURI APPA RAO

body2012
JUDGMENT 1. Legality and correctness of the order passed by the learned single Judge in WP No. 45100/2001 dated 4.1.2008 wherein the learned single Judge has confirmed the order of the Land Tribunal, Karkala in Case No. TRL 1465/77-78. Heard the counsel for the appellants, Govt. Advocate for R-1 & 2 and Mr. Ravishankar Shastry for R-3(a) to (c). 2. One Monta Moily filed Form No. 7 before the Land Tribunal, Karkala claiming occupancy rights in respect of 76 cents of land in Sy.No. 89/4 and 50 cents of garden land in Sy.No. 89/1 of Karkala against one Rukhayabi daughter of A.S. Usman. Landlady objected for the grant of occupancy rights on the ground that house property standing in Sy.No. 89/4 was the subject matter of the lease and not the land and either the garden or wet lands were not given on lease to Monta Moily. Tribunal after going through the records came to the conclusion that as per the lease chit only Sy.No. 89/4 measuring 76 cents was granted on lease to Monta Moily and based on the spot inspection granted occupancy rights in respect of Sy.No. 89/1A measuring 95 cents, even though Monta Moily had claiming occupancy rights in respect of 50 cents of land in Sy.No. 89/1 and no land in Sy.No. 89/1A of Karkala. Aggrieved by the order of the land tribunal writ petition was filed before this Court in WP No. 28155/1982 was filed. During the pendency of this writ petition, due to the amendment to the Karnataka Land Reforms Act all the writ petitions were stood transferred to the Land Reforms Appellate Authority. Again due to the abolition of the Land Reforms Appellate Authority, matter was stood transferred to the High Court in CP 12356/1991 and which was re-numbered as WP 45100/2001. Learned single Judge after hearing the parties, relying upon the lease deed confirmed the order of the Land Tribunal by dismissing the writ petition. Challenging the same, present appeal is filed. 3. The main contention of the appellants' counsel before us is that the tribunal as well as the learned single Judge did not consider that what was leased to Monta Moily was only a dwelling house in Sy.No. 89/4 and no wet land or garden land either in Sy.No. 89/4 or 89/1 was leased to the deceased Monta Moily. 3. The main contention of the appellants' counsel before us is that the tribunal as well as the learned single Judge did not consider that what was leased to Monta Moily was only a dwelling house in Sy.No. 89/4 and no wet land or garden land either in Sy.No. 89/4 or 89/1 was leased to the deceased Monta Moily. According to him, learned single Judge without considering the evidence let in by the parties and without considering Form No. 7 filed by the tenant, has erroneously dismissed the writ petition. He further submits that in Form No. 7 Monta Moily had claimed occupancy rights in respect of 76 cents of land in Sy.No. 89/4 and 50 cents of land in Sy.No. 89/1 of Karkala and what was granted by the land tribunal is 95 cents in Sy.No. 89/1A which was not the subject matter of Form No. 7. Therefore, he submits that even if the tribunal relying upon the lease chit had granted occupancy rights in respect of 76 cents of land in Sy.No. 89/4 as there was no land of Rukhayabi in Sy.No.89/1 would not have granted Sy.No.89/1A measuring 95 cents contrary to the claim made by Monta Moily. He further submits that no iota of evidence was placed before the tribunal to show that Monta Moily was a tenant in respect of Sy.No.89/1A measuring 95 cents. In the circumstances, he requests the court to allow the appeal by setting aside the order of the land tribunal and so also of the learned single Judge. 4. Learned Counsel appearing for the legal heirs of Monta Moily contends that as per the lease chit of 1953 entire 76 cents of land in Sy.No.89/4 of Karkala along with the existing house wereleased to Monta Moily and thereafter adjoining survey number in Sy.No.89/1A measuring 95 cents was also leased to Monta Moily, land tribunal after inspecting the spot has granted occupancy rights rightly in favour of the tenant in respect of both the lands. In the circumstances, he requests the court to dismiss the appeal. 5. Govt. Advocate has produced the records before us. We have seen Form No. 7 filed by Monta Moily. In Form No. 7 he had claimed 76 cents of land in Sy.No.89/4. But no claim is made in respect of Sy.No.89/1A which has been granted by the tribunal. In the circumstances, he requests the court to dismiss the appeal. 5. Govt. Advocate has produced the records before us. We have seen Form No. 7 filed by Monta Moily. In Form No. 7 he had claimed 76 cents of land in Sy.No.89/4. But no claim is made in respect of Sy.No.89/1A which has been granted by the tribunal. What has been claimed in Form No. 7 by Monta Moily is 50 cents of land in Sy.No.89/1. By looking into Form No. 7 it is clear that when there is no application filed by the tenant claiming occupancy rights in respect of Sy.No.89/1A, under no stretch of imagination tribunal could not have granted even a cent of land in Sy.No.89/1A. Even if survey number was wrongly mentioned as Sy.No.89/1 instead of Sy.No.89/1A, no application for amendment has been filed within the stipulated time to claim Sy.No.89/1A measuring 95 cents. Be that as it may, even if we consider that the claim made by Monta Mioly was in respect of the granted land in Sy.No.89/1A, there is nothing on record that the garden land measuring 95 cents was leased by Rukhayabi in favour of Monta Moily. The lease deed relied upon by Monta Moily of 1953 was in respect of the house situated in Sy.No.89/4 measuring 76 cents. On perusal of the lease deed, it is clear to us that what was leased to Monta Moily was not only building but also the land situated in Sy.No.89/4. Therefore, the contention of the appellants that only houses were leased cannot be believed. In the circumstances, we are of the opinion the findings of the tribunal as well as the learned single Judge in respect of 76 cents of lands in Sy.No.89/4 of Karkala is just and proper and does not calls for any interference. 6. So far as granting of land in Sy.No.89/A measuring 95 cents is concerned, as stated supra, no application was filed for grant of land in Sy.No.89/1A. The claim was in respect of 50 cents of land in Sy.No.89/1. Even if we consider the said application was in respect of Sy.No.89/1A, if he was a tenant of 50 cents of land when he has not given boundaries to the extent of 50 cents of land and no evidence is let in to show that when that survey number was leased to the tenant. Even if we consider the said application was in respect of Sy.No.89/1A, if he was a tenant of 50 cents of land when he has not given boundaries to the extent of 50 cents of land and no evidence is let in to show that when that survey number was leased to the tenant. In the absence of proper application concerning Sy.No.89/1A, if any land is granted by the tribunal has to be regarded by this Court as without jurisdiction and therefore the order passed by the learned single Judge as well as by the tribunal in regard to the granting of occupancy rights measuring 95 cents in Sy.No.89/1A of Karkala is held to be illegal as the claim itself was for 50 cents in Sy.No.89. In the circumstances, this appeal is allowed. Order of the learned single Judge is modified so also the order passed by the Land Tribunal, Karkala confirming occupancy rights granted to the L.Rs. of R-3 in respect of Sy.No.89/4 measuring 76 cents is confirmed. Granting of land in Sy.No.89/1A measuring 95 cents is hereby set aside. The claim made by Monta Moily in regard to Sy.No.89/1 is rejected.