Akku Poojarthy since dead By L.Rs. (Thukri Poojarthy, Sanjeeva Poojary and Sheena Poojary) and Girija Poojarthy vs K. Sadananda Bhat R/by his GPA Holder K. Raghavendra Bhat, The Land Tribunal and State of Karnataka

Legality and correctness of the order passed by the learned single Judge in WP No. 32937/2002 dated 11.12.2007 is called in question in this appeal. One Karia Poojary had filed Fork No. 7 in respect of 19 cents of land in Sy.No.50/11, 44 cents of land in Sy.No.50/12, 37 cents of land in Sy.No.50/13B, 9 cents of land in Sy.No.50/27 of Kutpady village in Udupi Taluk. Appellants are the legal heirs of Karia Poojary. Land Tribunal by its order dated 23.10.1981 granted occupancy rights in favour of Karia Poojary which order was challenged by the land-lord by filing a writ petition. this Court allowed the writ petition and remanded the matter to the tribunal by its order dated 5.9.1984. Once again the matter was considered by the tribunal granted three items of lands out of 5 items rejecting the contention of Karia Poojary in respect of 2 punja lands. Challenging two orders dated 23.10.1981 and 28.10.1988, landlords as well as the present appellants filed writ petitions and the writ petitions were allowed and matter was sent back to the tribunal. The tribunal after recording the evidence and reconsidering the entire case afresh, allowed the claim petition filed in Form No. 7 of the tenant and granted occupancy rights in respect of 5 items of lands. Being aggrieved by the order of the tribunal dated 11.7.2002, WP No. 32937/2002 was filed by R-1 which petition has been allowed by the learned single Judge and set aside the order of the tribunal by dismissing Form No. 7 filed by late Karia Poojary. Challenging the divergent findings of the land tribunal as well as the order passed by the learned single Judge, present appeal is filed.

We have heard the counsel for the appellants, counsel for R-1 and Govt. Advocate for R-2 & 3.

The main contention of the appellants before us is that the learned single Judge without considering the evidence let in by the parties and the findings of the tribunal, relying upon the judgment in Subhakar''s case holding that it is a punja land and not agricultural land has set aside the order and he further submits that in regard to the wet and garden land learned single Judge referring to any of the contentions both oral and documentary evidence and the spot inspection made by the land tribunal on two occasions, without any reasons has set aside the order. Therefore, he requests the court to set aside the order of the learned single Judge by allowing the appeal. Per contra, Mr. Acharya, counsel appearing for R-1 contends that the learned single Judge has considered the case of both the parties and the learned single Judge having found that the rent bond relied upon by the appellants was in respect of residential house and not in regard to the agricultural lands has rightly set aside the order of the tribunal and he further submits that the revenue records relied upon by the respondents were not considered by the tribunal. In the circumstances, he requests the court to dismiss the appeal. Learned Govt. Advocate has made available the original records to us. We have perused the records produced by the Govt. Advocate. Both the parties have relied upon several documents. Land Tribunal has inspected twice. Land Tribunal in para-7 to 9 has clearly given a finding based on the appreciation of evidence that the lands in question are garden and wet lands and two survey numbers measuring 8 cents each are punja lands and however those lands are brought into cultivation. But the learned single Judge without considering these aspects of the matter relying upon Subhakar''s case has come to the conclusion that punja lands cannot be the subject matter of Form No. 7. We are unable to accept the findings of the learned single Judge in regard to placing reliance in Subhakar''s case in view of the evidence of appellant/tenant. When punja lands are brought into cultivation, such lands are also can be granted by the tribunal. Without considering the evidence of the appellants and the spot inspection report of the tribunal has set aside the order of the tribunal so far as punja lands are concerned. So far as the garden and wet lands are concerned, learned single Judge is of the opinion that rent bond relied upon by the appellants is in respect of the premises which was taken on rent. But the evidence and the findings of the tribunal are otherwise. Without giving consideration to the findings of the tribunal, learned single Judge has set aside the entire order which according to us is perverse. Since there is no proper finding on all the survey numbers and there is no consideration of the evidence let in by both the parties, we are of the opinion that the order of the single Judge has to be set aside and the matter is required to be re-considered by the learned single Judge afresh in accordance with law. Accordingly, the appeal is dismissed. Order passed by the single Judge in WP 32937/2002 dated 11.12.2007 is hereby set aside. We request the learned single Judge to reconsider the matter afresh and pass appropriate orders in accordance with law.