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2016 DIGILAW 285 (KAR)

GOPINATHA SHETTY v. STATE OF KARNATAKA

2016-03-18

ANAND BYRAREDDY

body2016
ORDER : Anand Byrareddy, J. Heard the learned counsel for the petitioners and the learned counsel for the respondents. 2. The petitioner claims to be the owner in possession of land bearing Sy. No. 104/7 totally measuring 3 acres. The respondent No.3 herein had filed an application in Form No.7 under the provisions of the Karnataka Land Reforms Act, 1961, (Hereinafter referred to as the "KLR Act" for brevity) claiming several lands including the land bearing Sy. No. 104/7. The 4th respondent had also filed a form No. 7 claiming lands bearing Sy. No. 101/14 to the extent of 1 acre 20 cents. However, the 4th respondent had thereafter inserted a claim for land bearing Sy.No. 104/7 and the Land Tribunal, Sullia, by its order dated 13.07.1977 had granted occupancy rights in favour of the 4th respondent in land bearing Sy.No. 104/7C to the extent of 1 acre 4 cents and in respect of land bearing Sy.No. 104/14F to the extent of 1 acre 81 cents. By a separate order the Land Tribunal, Sullia, had granted occupancy rights in favour of respondent No.3 in respect of land bearing Sy.No. 104/4 P1 to the extent of 80 cents, 104/6 P1 to the extent of 43 cents, 104/7 B2 to the extent of 1 acre 36 cents and 104/10 to the extent of 1 acre 76 cents and that Sy.No. 104/11 P1 to the extent of 57 cents. As against the order of such grant in favour of the 4th respondent a writ petition was filed in WP No. 19713/1992 by the third respondent. This court by its order dated 29.05.1998 had allowed the writ petition and quashed the order of the tribunal dated 13.07.1977 as well as the order dated 01.10.1981 in so far as the grant of land in so far as Sy.No. 104/7C measuring 1 acre 4 cents and land bearing Sy.No. 104/7B2 measuring 1 acre 36 cents and the matter was remanded to the tribunal for fresh consideration. 3. On such remand it is the petitioners allegation that no enquiry was conducted in accordance with the rules and it was not "land", as defined under Section 2(18) of the KLR Act. 3. On such remand it is the petitioners allegation that no enquiry was conducted in accordance with the rules and it was not "land", as defined under Section 2(18) of the KLR Act. Therefore it had no jurisdiction to grant the land at all and it is further contended that respondents No.3 and 4 have not produced any documents to show that they were the tenants of land bearing Sy.No. 104/7. The copy of the RTC extracts for the year 1968-69 to 1971-72 would reflect that it is not the respondents who were in possession. It was clearly indicated that it is in the possession of the petitioner and the mode of cultivation is also indicated and therefore it must be given credence as to the petitioners' claim. The respondents had not rebutted the revenue entries by tendering any evidence and even the later RTCs for the subsequent years are found to be in the petitioners' name. Though the respondents No.3 and 4 are said to have tendered evidence in the year 2005 they sought grant of the land based on the alleged spot inspection and it is pointed out that the petitioner had specifically objected to the spot inspection as having been conducted behind his back and without notice to him and therefore was not binding on the petitioner. It is these primary contentions that are enlarged in the grounds raised in the petition in contending that the respondents could not have been conferred occupancy rights in respect of land bearing Sy.No. 104/7. 4. The 4th respondent who has contested the present petition has on the other hand contended that he was a tenant in possession of land bearing Sy.No. 104/7 of Peruvaje village, Sullia taluk amongst other lands. He had filed Form No.7 claiming occupancy rights under the provisions of the KLR Act. The Land Tribunal had measured the properties in possession of respondent No.4 and had prepared a sketch and on 13.07.1977 the Tribunal had recorded the evidence of the parties. At that stage the petitioner's brother, one Amaranatha Shetty, had appeared on behalf of the petitioner before the Land Tribunal and categorically admitted the tenancy of the respondents. He had also admitted the payment of geni in kind and had consented for the conferment of occupancy rights in favour of respondent No.4. The statement recorded by the Tribunal is produced along with the statement of objections. He had also admitted the payment of geni in kind and had consented for the conferment of occupancy rights in favour of respondent No.4. The statement recorded by the Tribunal is produced along with the statement of objections. Since the landlord had consented to the grant of occupancy rights, he was apparently not aggrieved by the grant of occupancy rights in favour of respondent No.4 and did not choose to challenge the grant of occupancy rights. It was the third respondent, however, who was a rival claimant, who had challenged the grant of occupancy rights in favour of respondent No.4 and during the pendency of the appeal as respondent No.4 had sought for correction of the survey number of the land as 104/7C before the appellate authority where the appeal filed by the third respondent was pending. The third respondent had filed his objection to the same, that had been adjudicated and the appellate authority had permitted the amendment to be carried out and a detailed order was passed. It is thereafter the correction was carried out, which in law would date back to the date of the application. That had not been challenged further, either by the third respondent, or by the petitioner herein and had attained finality. It is thereafter with the abolition of the appellate authority the matter stood transferred before this Court and was numbered as a writ petition and the matter having been heard at length was remanded to the Tribunal. Even at that stage the petitioner who was a party to the petition did not participate in the proceedings before this court and incidentally the Tribunal had granted occupancy rights to the extent of 60 cents in Sy.No. 104/7 to one Ganesh Shetty. That order was not disturbed in the said writ petition. The petitioners brother Amaranatha Shetty had admitted the tenancy and payment of rent. Therefore, the dispute having survived only between respondents No.3 and 4 the petitioner was out of the picture and hence the petitioner would have no right to again question the grant of occupancy rights on such remand by this Court. 5. Even otherwise as could be seen from the impugned order after remand by this Court the power of attorney holder of the petitioner had appeared before the Tribunal and thereafter he had remained absent. 5. Even otherwise as could be seen from the impugned order after remand by this Court the power of attorney holder of the petitioner had appeared before the Tribunal and thereafter he had remained absent. Though the Tribunal proceeded to conduct an enquiry on the basis of evidence available on record had proceeded to pass the order. Therefore, in spite of notice and appearance before the Tribunal the petitioner and his representative not having chosen to contest the proceedings are precluded, twice over, from challenging the order of grant of occupancy rights and on such remand the tribunal had also conducted a spot inspection and had prepared a sketch through the Taluk Surveyor and the survey report disclosed that the third respondent was in possession of 1 acre 50 cents and the 4th respondent was in possession of 90 cents in land bearing Sy.No. 104/P2 and P3 and therefore the tribunal had granted occupancy rights accordingly. It is contended that the petitioner not having chosen to contest the proceedings at every stage is now precluded from raising contentions for the first time denying grant of occupancy rights in favour of the petitioner. In that, the petitioner having not raised any such contention for over three decades is precluded from now raising any such contentions. The writ petition is liable to be dismissed on the ground of delay and laches. The contention that the 4th respondent had filed Form No.7 claiming lands in Sy.No. 101/14 to the extent of 1 acre 20 cents only is again denied as not being correct and attention is drawn to the amendment carried out. That amendment not having been questioned and having attained finality would ensure to the benefit of respondent No.4 and can hardly be questioned in the present petition. When it has attained finality even in the writ petition that the petitioner did not choose to appear before this Court and contest the matter and therefore he is precluded from contesting the issue. Though he was represented by counsel there was no whimper of an objection raised by the petitioner in the said proceedings. It is in this vein that the learned counsel for the respondent No.4 would seek to meet the contentions raised in the writ petition. 6. Though he was represented by counsel there was no whimper of an objection raised by the petitioner in the said proceedings. It is in this vein that the learned counsel for the respondent No.4 would seek to meet the contentions raised in the writ petition. 6. Given the above facts and circumstances, it is evident that the petitioner has not really resisted the claim of respondent No.4 at the earliest stage or when the matter reached this Court on the earlier occasion and even after remand and an appeal there was hardly any contest by the petitioner. It is only as an after thought that the present petition is filed. Therefore, as rightly contended by the learned counsel for respondent No.4 the earliest admission made, though it is contended the learned counsel for the petitioner that the admission did not pertain to the land in question, but was in respect of some other land, which was defined differently, the subsequent amendment also not having been questioned which would date back to the original application and which has remained without being challenged and had attained finality would preclude the petitioner from now questioning the same on whatever ground. Therefore, the petition is without merit and the admissions made by the petitioner and the non contest would definitely not enable the petitioner to now take a different stand at this remote point of time. There is no merit in this petition. The Petition is dismissed.