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2020 DIGILAW 122 (KAR)

Kishan Pyari W/o Srinivas v. State of Karnataka

2020-01-14

SACHIN SHANKAR MAGADUM

body2020
ORDER : The learned Additional Government Advocate has placed the original records. 2. The top noted writ petition is filed seeking recall/review of the order passed by this Hon’ble Court in W.P.No.41471/2002 and also for quashing of impugned order dated 11.06.2002 passed by second respondent/Land Tribunal, Kalaburagi as per Annexure-B. 3. The facts leading to this case are as under : The case of the petitioners is that they are the owners of land bearing Sy.No.501, measuring 31 acre 06 guntas situated at Honnakinnage Village, Kalaburagi Taluk and District. The petitioners father namely Ramkishan Mantri possessed several agricultural lands. The land bearing Sy.No.325 measuring 30 acre 19 guntas situated at Bankur Village had fallen to the share of petitioners’ father along with other lands. It is the case of the petitioners that their father died during the year 1953 and the petitioners’ brother took his share in joint family property during the year 1953. The only land left behind by the petitioners’ father was agricultural land bearing Sy.No.325 measuring 30 acre 19 guntas situated at Bankur Village. It is the case of the petitioners that their father bequeathed the land bearing Sy.No.325 in favour of petitioners to an extent of 1/4th share each and remaining half portion was given to the petitioners’ mother i.e., fourth respondent herein. The case of the petitioners is that by way of registered exchange deed dated 22.03.1972, the present petitioners and the deceased fourth respondent exchanged the properties bearing Sy.No.501 and 502 as against Sy.No.325 of Bankur Village. The case of the petitioners is that they are the owners of Sy.No.501. The petitioners have also stated in the writ petition that there was civil litigation between themselves and their brother who was interfering with their peaceful possession and accordingly, O.S.No.294/1994 was filed which came to be decreed. After coming into force of Land Reforms Act, the Tahsildar issued notice calling upon the mother of the petitioners herein to file declaration in Form No.11. Since the petitioners relationship with fourth respondent and their brother was not in cordial, the declaration is filed by including the land bearing Sy.No.501 measuring 31 acre 06 guntas with an intention to deprive the right of the petitioners. The case of the petitioners is that the Land Tribunal has not issued any notice to the petitioners before passing the impugned order as per Annexure-B dated 11.06.2002. The case of the petitioners is that the Land Tribunal has not issued any notice to the petitioners before passing the impugned order as per Annexure-B dated 11.06.2002. The case of the petitioners is that the deceased fourth respondent and their brother could not have filed a declaration even in respect of Sy.No.501. The second respondent/Land Tribunal passed an order dated 12.03.1982 declaring 07 acre 23 guntas of land as excess land, which was questioned by fourth respondent in W.P.No.12820/1982. During the pendency of writ petition, appellate authority was established and in that view of the matter, the writ petition stood transferred to appellate authority. Subsequently the appellate authority was abolished and consequently the fourth respondent filed a civil petition before this Court which was converted in Writ Petition No.25125/1993. This Court set-aside the order of the Land Tribunal dated 12.03.1982 and remanded the matter back to the Tribunal for fresh consideration. After remand, second respondent-Land Tribunal took the matter for fresh enquiry. The second respondent after remand proceeded to hold an inquiry. The second respondent/Land Tribunal was of the view that the petitioners and the fourth respondent were totally holding 61 acre 23 guntas of land and on examination, the Land Tribunal virtually concurred with earlier reasoning by holding that 07 acres 23 guntas of land is an excess land and thereby directed the fourth respondent to surrender the excess land to the Government. 4. The deceased fourth respondent i.e., the mother of the present petitioners assailing the correctness of the order dated 11.06.2002 and the consequent notice dated 19.07.2002 issued by a Tahsildar, approached this Hon’ble Court by filing writ petition before this Court in W.P.No.41471/2002. This Court having examined the records was of the view that the order passed by the Land Tribunal is in accordance with the amended provisions of Karnataka Land Reforms Act. This Court was of the view that the order passed by the second respondent is well reasoned and the same does not suffer from any illegality. Based on these set of reasons this Court proceeded to dismiss the writ petition. 5. The present petitioners have filed the present petition seeking recall/review of the order passed by this Hon’ble Court in W.P.No.41471/2002 on the ground that the order passed by the Land Tribunal and this Hon’ble Court would virtually prejudice the rights of the petitioners herein. Based on these set of reasons this Court proceeded to dismiss the writ petition. 5. The present petitioners have filed the present petition seeking recall/review of the order passed by this Hon’ble Court in W.P.No.41471/2002 on the ground that the order passed by the Land Tribunal and this Hon’ble Court would virtually prejudice the rights of the petitioners herein. The grievance of the petitioners is that they were not party to the writ petition and since it directly affects their right, the present writ petition is filed. 6. The counsel for the petitioners while assailing the order of the Land Tribunal as per Annexure ‘B’ and the order of this Court would vehemently argue and contend that the mother of petitioner Nos.1(a) to 1(d) and second petitioner are admittedly married daughters and hence their rights are to be examined independently in terms of definition of ‘Family’ under Section 2(12) of the Karnataka Land Reforms Act, 1961. 7. Further the counsel would bring to the notice of this Court that under Land Reforms Act, the concept of “joint family” is defined under Section 2(17) of the Karnataka Land Reforms Act. For brevity, the definition of ‘joint family’ is reproduced as under ;- “(17) “joint family” means in the case of persons governed by Hindu Law, an undivided Hindu family, and in the case of other persons, a group or unit the members of which are by custom joint in estate or residence.” By relying on these provisions of Karnataka Land Reforms Act, the counsel for the petitioners would submit that the Land Tribunal has not at all examined the rights of married daughters as contemplated under Section 63(4) of the Karnataka Land Reforms Act, 1961. By relying on these provisions, the counsel for the petitioners would vehemently contend and submit to this Court that though this Court was pleased to dismiss the writ petition filed by the fourth respondent thereby confirming the order passed by the Land Tribunal, the present petitioners have got independent right and since they were not party to the writ petition have got locus standi to seek recall of the order passed by this Court. In that view of the matter, he would submit to this Court that the present writ petition is maintainable. 8. In that view of the matter, he would submit to this Court that the present writ petition is maintainable. 8. The counsel for the petitioners while marshalling his arguments by taking this Court to the order passed by the Land Tribunal and this Court has relied on the judgment of this Court in the case of Iramma vs. The State of Karnataka and others passed in W.P.No.40/1991 dated 29.07.1993 and in the case of Basalingamma vs. State of Karnataka and others passed in W.P.No.1148/1991 dated 29.07.1993. The counsel for the petitioners would also rely on the judgment in the case of Abdul Khader vs. Land Tribunal, Sedam and another reported in AIR 1987 Karnataka 18. 9. The points that would arise for consideration in this petition are: 1. Whether the present petitioners can seek recall/review of the order passed by this Court in W.P.No.41471/2002 dated 12.03.2003 as per Annexure-C? 2. Whether the finding of respondent No.2/Land Tribunal in declaring an extent of 07 acres 23 guntas as excess land held by the present petitioners and respondent No.4 is perverse, palpably erroneous and contrary to the provisions of Section 2(12) and Section 63(4) of the Karnataka Land Reforms Act, 1961? 10. The counsel for petitioners while addressing his arguments on point No.1 would rely on judgment of the Apex Court in the case of Pohla Singh vs. State of Punjab reported in AIR 2004 SC 3329 . Admittedly, the petition lands are ancestral properties. It is not in dispute that the present petitioners and respondent No.4 succeeded to the petition lands bearing Sy.Nos.501 and 502. Even if respondent No.2/Land Tribunal and this Court disbelieved the decree passed in O.S.No.294/1974, then in that event the only conclusion that could be arrived is that both the petition lands were admittedly joint family ancestral properties of the present petitioners and respondent No.4 who is mother of the deceased first petitioner and petitioner no.2. If a person who has right in an agricultural land can also request the Tribunal to permit him to ceiling area for himself, though he himself may not be a declarant. It is not the filing of the declaration under Section 66(1) of the Act that confers jurisdiction or enables the Tribunal to determine the ceiling area. If a person who has right in an agricultural land can also request the Tribunal to permit him to ceiling area for himself, though he himself may not be a declarant. It is not the filing of the declaration under Section 66(1) of the Act that confers jurisdiction or enables the Tribunal to determine the ceiling area. Sub-section 2 of Section 66 confers power on the Tahasildar to call upon any person to furnish to him a declaration as to the lands held by him. In the present case on hand, respondent no.4 has filed as declaration in Form No.11 and in the declaration, respondent no.4 has stated that joint family consists of herself and two married daughters. 11. In the present case on hand it is not in dispute that the mother filed declaration in Form-11 and in the said declaration she has made a statement in unequivocal terms that she along with two “married daughters” are owners of the petition lands in question. The question that would arise before this Court is whether land Tribunal was justified in not taking note of married daughters and allowing each member a ceiling area. 12. Hence, in that view of the matter, the order of respondent No.2/Land Tribunal declaring 07 acres 23 guntas is excess land and the same being confirmed by this Court would give rise to cause of action to seek for adjudication of their rights in the petition lands. 13. In that view of the matter, the present petition filed by the petitioners seeking recalling has to be examined on merits. In that view of the matter, the point No.1 formulated by this Court is answered in affirmative by recording a finding that the order passed by this Court in W.P.No.41471/2002 needs reconsideration and accordingly point No.1 is answered in affirmative. 14. Since the crucial question that requires to be considered by this Court is as to whether the married daughters are to be treated as a person or with reference to family as defined under the Karnataka Land Reforms Act. The ratio laid down by this Court in the case of Abdul Khader case supra, has resolved the status of a widow and unmarried daughters. The ratio laid down by this Court in the case of Abdul Khader case supra, has resolved the status of a widow and unmarried daughters. This Court while interpreting the provisions of sub-section 4 of Section 63 has held that the expression “family unit” as defined under Section 2(12) of the Act would include an individual who has spouse or spouses, such individual, their spouse or spouses and their minor sons and unmarried daughters. For brevity, the definition of ‘Family’ is reproduced as under ;- “(12) “Family” means, - (a) in the case of an individual who has a spouse or spouses; such individual, the spouse or spouses and their minor sons and unmarried daughters, if any; (b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters; (c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and (d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters. 15. On reading of this definition under Section 2(12) of the Act it is clearly evident that the above said persons are to be taken as one family unit. But the said definition would clearly exclude the married daughters. This Court examined the right of the married daughters while determining the excess land under Section 63 (4) and 66(2) of the Act. 16. This Court in the case of Iramma and Basalingamma (W.P.No.40/1991 and W.P.No.1148/1991), has held that daughter being a married person would each constitute a separate unit for purpose of ceiling limit. The ceiling area has to be determined either with reference to a person or with reference to a family as defined in the Act. 17. This Hon’ble Court had an occasion to examine the question as to whether married daughter is to be treated as a separate unit for the purpose of computing ceiling and this Hon’ble Court in W.P.No.40/1991 and W.P.No.1148/1991 has held that for the purpose of Karnataka Land Reforms Act, the married daughter does not belong with the family of her mother and each married daughter would constitute a separate Family and in that event each one of them are entitled for separate holding of 54 acres of ‘D’ class land. The Division Bench of this Court in Abdul Khader case relying on the Apex Court judgment in Vyasendra case reported in AIR 1983 SC 632 , has taken note of the explanation to sub-section 1 of Section 4 in a case arising out of Maharashtra Agricultural lands (Ceiling on Holdings) Act, 1961. In the said judgment, the Hon’ble Apex Court has examined what constitutes the family unit and in the said judgment, the Hon’ble Apex Court was of the view that a person, his spouse and their minor sons and minor unmarried daughters would constitute family unit. The corresponding provisions under Karnataka Land Reforms Act would be section 2(12) wherein the definition of family is contemplated in Karnataka Land Reforms Act, 1961. 18. On reading of the ratio laid down by the Division Bench of this Court in Abdul Khader case, it is clearly evident that it is only an individual who has spouse or spouses and their minor sons and unmarried daughters would constitute family unit. The definition of family clearly excludes the married daughters under the provisions of Karnataka Land Reforms Act, 1961. It should be a conclusive indication that “family” mentioned in the Land Reforms Act, 1961 is distinct and a clear pointer that undivided Hindu family was not in the contemplation of legislature when it enacted the said definition under section 2(12) of Karnataka Land Reforms Act, 1961. Therefore, what can be inferred from the definition under section 2(12) of Karnataka Land Reforms Act is that the stress is only on the ‘existence’ of the relationship mentioned in the section and unit of title or joint ness of holding in relation to property are not essential elements for attracting applicability of the definition of family under section 2(12) of Karnataka Land Reforms Act, 1961. In view of the ratio laid down by this Court in Iramma, Basalingamma and Abdul Khader cases, this Court is of the view that the deceased petitioner No.1 and petitioner no.2 who are married daughters cannot be “constitute members” of family unit and their legitimate share in the petition land cannot be pooled together for the purpose of determining the ceiling area. On the contrary they would be treated as separate unit along with their mother and are entitled to retain three ceiling areas amounting to 162 acres and therefore, the family of the petitioners and deceased respondent No.4 was not holding surplus and as such they are not liable to surrender to any land at all. 19. In the present case, married daughters are to be treated as persons. In other words the married daughter is to be treated as independent unit and in that context, the Land Tribunal in the present case on hand did not advert to this crucial principle in adjudicating the rights of the parties. The Land Tribunal has not at all adverted to this controversy between the parties. 20. In the present set of facts, the deceased mother and deceased petitioner No.1 and petitioner no.2 are to be treated as three separate units and if so, the impugned order passed by respondent No.2/Land Tribunal is not at all sustainable. Respondent No.2/Land Tribunal has proceeded to declare 07 acres 28 guntas as excess land by including even the married daughters within the definition of the family and thereby proceeded to declare 7 acres 28 guntas as excess land. This Court while examining the material on record has concurred with the reasoning of respondent No.2/Land Tribunal. It is therefore necessary to examine the correctness or legality of the order passed by respondent No.2/Land Tribunal and this Court. If the entire material on record re-examined meticulously then this Court is of the view that each petitioner and deceased/respondent No.4 independently have to be permitted to ceiling area i.e. 54 acres of ‘D’ class land and if the extent of land collectively is to be assessed, the same would come to 162 acres of ‘D’ class land. This material aspect is not at all considered by respondent No.2/Land Tribunal. 21. In that view of the matter, point No.2 formulated by this Court is answered in affirmative. The order of respondent No.2/Land Tribunal declaring 07 acres 23 guntas of the petition lands as excess land is perverse and same is quashed by this Court. For the reasons stated supra, writ petition is allowed. The order passed by this Court in W.P.No.41471/2002 dated 12.03.2003 vide Annexure-C is recalled and consequently, the impugned order dated 11.06.2002 passed by respondent No.2/Land Tribunal as per Annexure-B stands quashed.