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2012 DIGILAW 918 (KAR)

Thirakanagouda N. Patil v. State of Karnataka

2012-11-06

B.MANOHAR, RAM MOHAN REDDY

body2012
JUDGMENT Ram Mohan Reddy, J.—This intra Court appeal is preferred by the petitioners in W.P. No. 16859/2011 aggrieved by the Order dated: 29.5.2012 of the Learned Single Judge dismissing the petition. Facts not in dispute are: One Naganagouda Patil, said to be the propositus, had eight children, since deceased represented by legal heirs, petitioners and respondents were parties in O.S. No. 182/1966 on the file of the Munsiff, Haveri, for declaration, partition and separate possession of several immovable properties including lands in R.S. Nos. 195 and 129/A measuring 20 acres and 31 guntas and 1 acre and 29 guntas, respectively, of Balambid Village in Hangal Taluk, admittedly, claimed to be in joint possession and cultivation of the siblings, as tenants. In the absence of a dispute over tenancy claims, an issue over claim of tenancy was not framed and the suit ended in a compromise decree dated: 29.9.1966, Annexure-R-3 to the statement of objections of respondents, one of the terms of which reads thus: Varnacular Matter Omited 2. By this term, the parties agreed that the lands in question since tenanted from the time of their ancestors, and if the property is shown as fallen to the share of one of the parties no disputes would arise, the plaintiff and defendants 1 to 7 to cultivate the lands jointly and as has been done till the present to jointly pay to the Landlord the rent (Lavani). 3. The Deputy Commissioner having initiated action to recover the levy over paddy grown on the said lands, under the Food Control Orders, the petitioners" father responded by an explanation Annexure-R4 to the statement of objections which reads thus: Varnacular Matter Omited 4. In other words, the dispute between the eight brothers was resolved by way of a compromise recorded in O.S. No. 182/1966 and ever since then each of the parties are in possession and cultivation of their respective shares of the immovable properties, which is also registered. Such of the properties which are taken on lease of which shares by metes and bounds are not effected, it is stated are in joint possession and cultivation of the eight brothers and the produce therefrom equally distributed amongst themselves, after making over the lease rentals (Lavani) to the Landlord. 5. Such of the properties which are taken on lease of which shares by metes and bounds are not effected, it is stated are in joint possession and cultivation of the eight brothers and the produce therefrom equally distributed amongst themselves, after making over the lease rentals (Lavani) to the Landlord. 5. According to the petitioners, since the landlord opposed the mutation entry No. 2033 recording the names of all the brothers as joint tenants and cultivators of the lands in question on the premise that the petitioners" father was the sole tenant, that entry was set-aside by Order dated: 30.9.1968 Annexure-E of the Tahsildar, Hangal, which order when carried in Revision Petition bearing RTS RA SR 8/75-76 before the Special Deputy Commissioner was confirmed by Order dated: 18.10.1975 Annexure-F. 6. On the coming into force of the amendment to the Land Reforms Act, 1961, petitioners" father and his seven brothers filed separate applications in Form No. 7 under Section 48-A of the Land Reforms Act, 1961, wherein petitioners" father claimed occupancy rights over the lands in question as the sole tenant, while his brothers claimed to have a share in the tenanted land on the premise that it was a joint family tenancy. The Land Tribunal in the first instance by Order dated: 7.1.1976 conferred occupancy rights jointly on all the brothers, which when called in question in W.P. No. 1872/1976 was quashed by Order dated: 23.2.1976 and the proceeding remitted for consideration afresh. On remand, the Land Tribunal by Order dated; 16.7.2002 conferred occupancy rights on the father of the petitioners which when called in question in W.P. No. 28770/2002 was quashed by Order dated: 1.6.2007 Annexure-G, formulating an issue as to who was/were cultivating the land, in the fact situation as on 1.3.1974 and thereafterwards, to take a decision on Form No. 7 independently filed by the father of the petitioners and his brothers. On remand, the Tribunal making reference to the evidence both oral and documentary returned a finding that the tenancy of the lands in question was joint and that all the brothers had a share in the tenanted land as on 1.3.1974 and accordingly by Order dated: 19.4.2011 Annexure-H conferred joint tenancy rights over all the applicants/brothers. Hence, this petition, 7. On remand, the Tribunal making reference to the evidence both oral and documentary returned a finding that the tenancy of the lands in question was joint and that all the brothers had a share in the tenanted land as on 1.3.1974 and accordingly by Order dated: 19.4.2011 Annexure-H conferred joint tenancy rights over all the applicants/brothers. Hence, this petition, 7. Before the Learned Single Judge, it was submitted that the order cancelling the Mutation Entry No. 2033 having become final by the rejection of the Revision Petition filed by the respondents, whereunder, the name of the petitioners" father alone was recorded as the sole tenant of the lands in question prior to 1.3.1974, being a decisive factor, the Tribunal was not justified in conferring joint occupancy rights on the father of the petitioners and his siblings. It was further submitted that the landlord having made a categorical statement that it was the father of the petitioners alone who was the tenant of the lands in question took away the effect of the term in the compromise decree hence it was the petitioners" fathers alone on whom occupancy rights had to be conferred. The Learned Single Judge having examined the order of the Land Tribunal did not find any legal grounds to accept the submission of the Learned Counsel and declined to interfere with the order of the Land Tribunal by the order impugned. 8. Sri R.L. Patil, Learned Counsel for the appellants submits that in the light of sub-Section 2 of Section 3 of the Karnataka Land Reforms (Second Amendment and Miscellaneous Provisions) Act, 1974, for short "Act", the judgment and compromise decree in O.S. No. 182/66 is rendered nugatory and that the Land Tribunal is duty bound to confer occupancy rights of the lands in question upon the petitioners" father who claims to be the sole tenant of the properties in question prior to land as on 1.3.1974, to the exclusion of his brothers, the respondents herein. 9. It is useful to refer to the relevant portion of the Act referred to by the Learned Counsel which reads thus: 1. Short title and commencement--(1) This Act may be called the Karnataka Land Reforms (Second Amendment and Miscellaneous Provisions) Act, 1974. (2) It shall be deemed to have come into force on the Third day of August, 1974. 2. Amendment of Section 133 - (incorporated in the principal Act) 3. Short title and commencement--(1) This Act may be called the Karnataka Land Reforms (Second Amendment and Miscellaneous Provisions) Act, 1974. (2) It shall be deemed to have come into force on the Third day of August, 1974. 2. Amendment of Section 133 - (incorporated in the principal Act) 3. Disposal of certain pending proceedings, etc.- (1) Notwithstanding anything in any law for the time being in force, the provisions of Clause (a) of sub-Section (2) of Section 133 of the Karnataka Land Reforms Act, 1961, (Karnataka Act 10 of 1962) as amended by this Act, shall be applicable to all proceedings commenced before the date of commencement of this Act and - (a) pending before any Civil Court: (b) pending in appeal or revision against the judgment or order of the Civil Court; or (c) finally disposed of by such Courts after the first day of March, 1974, as if the said clause as amended by this Act, was in force when the right accrued or the liability was incurred and every such Court shall deal with the proceedings accordingly and any interim or final order or judgment passed by such Court or appellate authority shall be re-opened and the suit or the appeal shall be disposed of in accordance with the said amended clause. 2. Notwithstanding any judgment, decree or order of any Civil Court, the Tribunal constituted under Section 48 of the Karnataka Land Reforms Act, 1961, shall enquire into any claim for registration as occupant made by a person who was a tenant within the meaning of the said Act immediately prior to 1st March, 1974 and who by reason of any such judgment, decree or order has subsequent to the said date been dispossessed of the land of which he was a tenant or is not any way precluded from pleading his tenancy, and direct, if the merits of the case so warrant, that such person be registered, subject to the other provisions of the said Act, as occupant of such land. 10. 10. A perusal of the aforesaid amended provision mandates that notwithstanding any judgment, decree or order of the Civil Court, the Tribunal under Section 48 of the Karnataka Land Reforms Act, 1961, shall enquire into any claim for registration as occupant made by a person who was a tenant within the meaning of the Act immediately prior to 1.3.1974 and who by reason of any judgment, decree or an order is subsequent to 1.3.1974 dispossessed of the land of which he was a tenant or is any way precluded from pleading his tenancy. Thus, two contingencies are contemplated by the said Section for the Land Tribunal to consider the claim of tenancy if, (i) a tenant within the meaning of the Act prior to 1.3.1974 by reason of any judgment, decree or order, has been subsequent to 1.3.1974 dispossessed of the land of which he was a tenant; and (ii) or the tenant is any way precluded from pleading his tenancy. 11. A Learned Single Judge of this Court in Bhagirathi Amma vs. Land Tribunal, Udupi 1979 (1) KLJ 307, while interpreting sub-Section 2 of Section 3 of the Act 31 of 1974 observed thus: Now, let me examine whether the interpretation of sub-Section (2) of Section 3 of Act 31 of 1974 as covering the orders and decrees made by the Civil Courts both before and after 1.3.1974 in accordance with the clear language of that provision renders sub-Section (1) otiose as it sought to be made out for the petitioners and consequently calls for a restricted interpretation. In my opinion, sub-Section (1) of Section 3 is made entirely to serve a different purpose and will not be rendered useless by holding that sub-Section (2) covers Civil Court decrees made even after 1.3.1974. In my opinion, sub-Section (1) of Section 3 is made entirely to serve a different purpose and will not be rendered useless by holding that sub-Section (2) covers Civil Court decrees made even after 1.3.1974. As can be seen from the language of sub-Section (1) of Section 3 of the Act 31 of 1974, it is made applicable to all proceedings instituted in a Civil Court before 22.9.1974 on which date the said Act came into force and it covers the following types of cases in which question tenancy is or was involved: (1) Original suits pending before the Civil Court, (2) Appeals or revisions against the judgments or orders made by the Civil Courts in a suit which are still pending, (3) suits which have been disposed of by such Civil Courts in exercise of original or appellate jurisdiction as the case may be after 1.3.1974. The provision made in sub-Section (1) of Section 3 in respect of the above matters is that sub-Section (2) of Section 133 as amended by Act 31 of 1974 must be deemed to be in force on the dates when interim or final orders were passed in the aforesaid proceedings and it is further provided that every such Court should deal with the proceedings as if sub-Section (2) of Section 133 as amended by Act 31 of 1974 was in force. In other words, the Civil Court refer the question of tenancy to the Land Tribunal and only after the receipt of the finding of the Land Tribunal on the said question, the Civil Court should proceed to dispose of the case or appeal as the case may be. This is in so far as it relates to suits or appeals which were still pending. In so far it relates to final orders already passed by the Civil Courts, either in original suits or in appeals, which involved the question of tenancy or any interim order passed in original suits or appeals, against the persons claiming to be tenants, sub-Section (1) of Section 3 specifically provides that such order shall be re-opened by the concerned Court and thereafter, the Court shall proceed in accordance with Section 133 (2) of the Act. Thus, it may be seen that under sub-Section (1) of Section 3 of the Act 31 of 1974 it is open for the concerned parties to apply for re-opening the case and when such an application is made it is obligatory for the Civil Court to reopen the matter if the case involved a question of tenancy. Similarly, in a case where the case of the party is that he did not raise the plea of tenancy or having raised such a plea, he withdrew the same, on account of ignorance or of fraud played on him by the land owner or that the decree was obtained by taking his consent by misrepresentation or fraud, the party can also have recourse to sub-Section (1) of Section 3 of Act 31 of 1974 to have the matter re-opened and the Civil Court can order the re-opening of the case. These are the purposes for which sub-Section (1) of Section 3 was incorporated. Hence, it would not be rendered otiose by giving full effect to sub-Section (2) of that Section. 8. (7) xxxxxx The provision for re-opening is a safeguard incorporated by the legislature in addition to sub-Section (2) of Section 3 of Act 31 of 1974. Therefore, even if the concerned party fail to have recourse to sub-Section (1) of Section 3 to have the matter re-opened or even if the application made for re-opening is rejected by the Civil Court, the Tribunal is not bound by any decree or order of the Civil Court and it can investigate the genuineness of any claim of tenancy as also the reasons and circumstances under which the plea of tenancy was not raised or taken up before the Civil Court and can come to its own conclusions. The jurisdiction of the Tribunal is not hedged by any limitation. xxxx (emphasis supplied) 12. In the fact situation, O.S. No. 182/1966 filed by one of the siblings of the petitioners" father was for declaration, partition and separate possession, resulting in a compromise decree. The jurisdiction of the Tribunal is not hedged by any limitation. xxxx (emphasis supplied) 12. In the fact situation, O.S. No. 182/1966 filed by one of the siblings of the petitioners" father was for declaration, partition and separate possession, resulting in a compromise decree. Admittedly, in that suit, since the petitioners" father did not plead tenancy rights over the lands in question to the exclusion of his siblings, much less oppose the claim of the plaintiff for a share in the ancestral joint family properties including tenancy rights, while, the landlord of the tenanted land was not arraigned as a party-defendant, no issue over tenancy was framed. The compromise entered into between the members of the joint family consisting of the petitioners" father and his siblings, emphatically asserted that the elders of the parties were in joint possession and cultivation of the lands in question as tenants and paying the lease rent (Lavani) to the Landlord and if the name of only one of the brothers was recorded in the revenue records, though no dispute may arise between the brothers, nevertheless agreed to continue the cultivation of the land jointly and also pay the rents to the Landlord jointly. The petitioners" father in the reply to the notice of the Deputy Commissioner to recover levy over the paddy grown on the land reiterated the said agreement. Admittedly, it is not pleaded that the compromise decree was obtained by misrepresentation, fraud or otherwise or that subsequent to 1.3.1974 the petitioners" father was dispossessed of the said lands, nor a Misc. application filed in O.S. No. 182/1966 to recall/set-aside the compromise decree. 13. It is true the mutation entry No. 2033 in the revenue register maintained under the Karnataka Land Revenue Act, recording the names of all the brothers was called in question by the Landlord the revenue authorities and when set-aside, the name of the petitioners" father was retained while the names of the brothers deleted on the premise that the Landlord assered that it was the petitioners" father alone who was the tenant of the lands in question, which order was confirmed by dismissal of the Revision Petition filed by the other brothers. That fact by itself and nothing more is neither conclusive proof of tenancy in favour of the petitioners" father to the exclusion of other brothers nor does it take away the effect of the terms of compromise in O.S. No. 182/66. It is significant to observe that it is not the case of the petitioners" father that he was in any way precluded from pleading his tenancy in O.S. No. 182/1966. 14. In the circumstances, there can be no more dispute that the requirements of sub-Section 2 of Section 3 of the Act are not complied with so as to address the petitioners claim of exclusive tenancy rights over the lands in question. 15. Sri F.V. Patil, Learned Counsel for the respondents submits that in order to maintain peace in the family, the respondents-legal representatives of the other siblings of petitioners" father are willing to part with 4 acres of land in question i.e., 2 acres in excess of the petitioners" share. Learned Counsel for the petitioners on instructions submits that the petitioners are not interested in the said offer but would be interested only if they are given 8 acres of land since in the partition, they have been denied the full extent of their share in the properties. Sri F. V. Patil, submits that the submission of denial of the full extent of petitioners share in the partition is incorrect and if they so desires may institute a final decree proceeding and secure their share though they have always been in possession and enjoyment of their share of the properties. Having given our thoughtful consideration to the material averments, we find no legal infirmity in the findings recorded by the Land Tribunal and the opinion of the Learned Single Judge to call for interference. Appeal devoid of merit is rejected. Sequentially, IA"s I/12, III/12, IV/2012 and V/2012 are rejected as unnecessary.