Chandravathi D/o Oovamma v. N. Subban Shiva Rao S/O Late N. Shiva
2022-09-27
ALOK ARADHE, S.VISHWAJITH SHETTY
body2022
DigiLaw.ai
JUDGMENT : Vishwajith Shetty J. This intra court appeal is filed assailing the order dated 16.03.2021 passed by the learned Single Judge of this Court in W.P.No.33277/2012. 2. We have heard the learned counsel appearing for the parties and also perused the material available on record. 3. Facts leading to filing of this appeal briefly stated are, the mother of the appellant and her brother M.Nagesh namely respondent No.9 herein had filed two separate Form No.7 under the Karnataka Land Reforms Act, 1961 (for short "the Act, 1961") claiming occupancy rights of the lands mentioned therein. In Form No.7 filed by M.Nagesh, he had requested for granting occupancy rights in respect of land bearing survey No.108/1A while the mother of the appellant namely Smt. Oovamma had filed Form No.7 in respect of land bearing survey No.110/1, 108/1A, 110/6, 6/2C and 6/2A. Since the land bearing survey No.6/2C and 6/2A were situated in a different village, the claim in respect of said two items of land was transferred to another Tribunal while the claim in respect of other three items of the land which were situated in Kadri B Village was considered by the respondent/Tribunal and by order dated 14.10.1980, the Tribunal had granted occupancy rights of the land bearing Nos.108-1A1, 108-1A2, 110-6A of Kadri B Village in favour of the appellant's mother. Subsequently, in the year 2009, an application was filed by the legal representatives of late Oovamma contending that the Tribunal by mistake had granted occupancy rights of the land bearing survey 108-1A2 and 110-6A instead of 110/1 and accordingly had prayed to rectify the said mistake committed by the Tribunal. The said application was opposed by the landlords. The Tribunal by order dated 23.09.2011 allowed the said application and directed to carryout necessary correction in the order dated 14.10.1980 with regard to the survey number of the property. The said order dated 23.09.2011 was challenged by the landlords in W.P.No.33277/2012 which was allowed by the learned Single Judge of this Court vide order impugned and being aggrieved by the same, respondent No.4 in the said writ petition who is the daughter of Oovamma has filed this intra court appeal. 4. Learned counsel for the appellant submits that the learned Single Judge had erred in observing that the Tribunal had reviewed its own order dated 14.10.1980 while passing the order dated 23.09.2011.
4. Learned counsel for the appellant submits that the learned Single Judge had erred in observing that the Tribunal had reviewed its own order dated 14.10.1980 while passing the order dated 23.09.2011. He submits that the Tribunal has exercised its powers under Section 48-A(6) of the Act, 1961 and corrected the clerical or typographical error that had crept in mentioning wrong survey number. He refers to the Form No.7 and submits that the land bearing survey No.110/1 was claimed in Form No.7 and the Tribunal had granted survey No.108/1A2 instead of the said survey number and it is under this circumstance, a request was made before the Tribunal to rectify the mistake by mentioning the correct survey number of the property. He submits that the Tribunal in order to ascertain the correctness of the prayer made in the application had held a spot inspection and found that the legal representatives of late Oovamma were in possession of the land bearing survey No.110/1 and accordingly has passed an order in exercise of its powers under Section 48-A(6) of the Act, 1961 rectifying the mistake committed by it in mentioning the survey number of the land in its order dated 14.10.1980. He submits that the Tribunal has jurisdiction and power to correct its mistake and in support of his contention, he has relied upon the judgments reported in the case of Ramachandra Devasthanam Sawada vs. Subbanna Shetty & Ors., ILR 1998 KAR 1588, Y.S.Ramachandra Rao vs. State of Karnataka and Others, ILR 2005 KAR 2111 and in the case of Honnamma and Ors. vs. Nanjundaiah(D) by L.Rs. and Ors., 2008 AIR SCW 2787. 5. Per contra, the learned counsel appearing for the landlords has argued in support of the order passed by the learned Single Judge and contends that the application is filed after a lapse of 29 years and therefore, the Tribunal was not justified in entertaining the application. He submits that the Tribunal has virtually reviewed its own order and therefore, the learned Single Judge was justified in setting aside the said order. He, accordingly, prays to dismiss the appeal. 6. From the perusal of Form No.7 which is produced on record at Annexure-B, it is seen that Smt. Oovamma had made a claim for grant of occupancy rights of land bearing survey No.110/1 situated at Kadri B Village, Mangaluru Taluk.
He, accordingly, prays to dismiss the appeal. 6. From the perusal of Form No.7 which is produced on record at Annexure-B, it is seen that Smt. Oovamma had made a claim for grant of occupancy rights of land bearing survey No.110/1 situated at Kadri B Village, Mangaluru Taluk. In addition to the same, she had also made a claim in respect of the land bearing survey Nos.108/1A and 110/6 situated in the very same village. The Tribunal by its order dated 14.10.1980 had granted occupancy rights of the land bearing survey No.108-1A1, 108-1A2 and 110-6A in favour of late Oovamma. Though there was no claim in respect of land bearing survey No.108/1A2, the Tribunal had granted occupancy rights of the said land in favour of late Oovamma. The legal representatives of late Oovamma later filed an application under Section 48-A(6) of the Act, 1961 before the Tribunal to rectify the mistake committed by it in its order dated 14.10.1980 contending that though the claim in Form No.7 was in respect of land bearing survey No.110-1, the Tribunal has erroneously mentioned the survey number and has granted land bearing survey No.108-1A2 in the order dated 14.10.1980. 7. This Court in the case of Ramachandra Devasthanam Sawada (supra) has appreciated the powers of the Tribunal under Section 48-A(6) of the Act, 1961 and held that the land Tribunal has got a jurisdiction to correct the mistake on its own or on an application by any of the parties, for the reasons to be recorded in writing after hearing all the parties. In the case of Y.S.Ramachandra Rao (supra), this Court held that the Tribunal has got jurisdiction to grant occupancy right in respect of a survey number not mentioned in Form No.7, if by mistake the applicant had mentioned a different survey number. In the said case, it has been also held that the Tribunal has power to verify and ascertain the correctness of the survey number and pass appropriate orders. In the case of Honnamma (supra), the Hon'ble Supreme Court has held that the prayer to amend Form No.7 by correcting survey number or the extent cannot be rejected merely on the ground of limitation. 8.
In the case of Honnamma (supra), the Hon'ble Supreme Court has held that the prayer to amend Form No.7 by correcting survey number or the extent cannot be rejected merely on the ground of limitation. 8. In the instant case, after application was filed under Section 48-A(6) of the Act, 1961, for rectifying the mistake committed by the Tribunal, the Tribunal has held a spot inspection to verify the veracity of the prayer made before it and the material on record would go to show that the legal representatives of claimant/Smt.Oovamma were found in the possession of the land bearing survey No.110/1 and taking this aspect into consideration, the Tribunal has exercised its power under Section 48-A(6) of the Act, 1961 and rectified the mistake committed by it in mentioning the survey number of the land in its order dated 14.10.1980. Undisputedly, in Form No.7 a claim was made in respect of the land bearing survey No.110/1 and not in respect of land bearing survey No.108/1A2. 9. Section 112B of the Act, 1961 provides with regard to duties of the Tribunal which includes power to make necessary verification and hold an enquiry including local inspection. The Tribunal in exercise of the said powers had held a local inspection in respect of the land in question pursuant to the application made by the legal representatives of late Oovamma seeking rectification of survey number in the order passed by the Tribunal and after being satisfied that the legal representatives of the original claimant Smt. Oovamma were in possession of land bearing survey No.110/1 had proceeded to correct the mistake committed by it in mentioning wrong survey number in its order dated 14.10.1980. 10. The learned Single Judge without appreciating this aspect of the matter had allowed the writ petition vide order dated 16.03.2021 on a erroneous conclusion that the Tribunal had virtually reviewed its own order dated 14.10.1980. 11. In our considered view the facts and circumstances of the case would go to show that the Tribunal in fact has exercised its power under Section 48- A(6) of the Act, 1961 and rectified the mistake committed by it and corrected the survey number of the land in the order passed by it dated 14.10.1980 and it has not exercised the power of the review as held by the learned Single Judge.
Under the circumstances, we are of the considered view that the order of the learned Single Judge cannot be sustained. Accordingly, the following:- ORDER i. Writ appeal is allowed. ii. Order dated 16.03.2021 passed by the learned Single Judge in W.P.No.33277/2012 is quashed.