Amba Heggadathi vs The Land Tribunal

Dr. Jawad Rahim, J.

W.P. Nos. 48393 of 2003; 43368 of 2001 and 21047 of 2004.

The genesis of these writ petitions is the claim of certain persons for grant of occupancy right under the provisions of the Karnataka Land Reforms Act, 1961 and the opposition by the landlords to grant such relief. W.P. Nos. 48393 of 2003, 43368 of 2001 and 51142 of 2003 which are re-numbered in terms of Rule 71 of the Karnataka High Court Account Rules, 1965 is assigned only two numbers, thereby rounding off W.P. No. 51142 of 2003. Petitioners therein are landowners.

W.P. No. 21047 of 2004 and two more writ petitions in W.P. Nos. 21048 and 21049 of 2004 are by persons claiming tenancy. The writ petitions are re-numbered assigning only one number, i.e. W.P. No. 21047 of 2004, deleting the other numbers.

All these writ petitions are directed against the order of the Land Tribunal in No. TRL/28:1977-78+08:79-80+117:79-80, dated 5-9-2003 whereby the Land Tribunal, Moodabidri, has granted tenancy rights to the applicants, viz., Daku Naika, Bitta Naika and Janu Naika to a limited extent and rejected their claim in respect of certain other lands. The petitions are clubbed and taken up for hearing and disposal with consent.

From what the learned Counsel for the petitioners and learned Government Advocate for the respondents have urged, the following contextual facts need reference:

(a) Lands in Survey No. 131/2A measuring 3 acres 10 cents, land in Survey No. 131/2D measuring 3 acres 30 cents, land in Survey No. 131/6A measuring 1 acre 8 cents, land in Survey No. 502-2 measuring 22 cents and land in Survey No. 131/2B measuring 2 acres 24 cents were owned by Smt. Seetha Shedthi-mother of the petitioners and she died intestate in the year 1967. After her demise, petitioner-Amba Heggadathi succeeded to her estate.

(b) Respondents 3, 4 and 5, viz., Daku Naika, Bitta Naika and Janu Naika filed application in Form 7 claiming to be tenants cultivating the lands personally and sought grant of occupancy under Section 45 of the Karnataka Land Reforms Act, 1961. The claim was resisted by the petitioner as the landlady was not alive. The Tribunal rejecting her objections, allowed the claim of the tenants by order dated 4-1-1978, granting to the 3rd respondent-Daku Naika land in Survey No. 468-3A measuring 1 acre 79 cents. Similarly the Tribunal granted to the 4th respondent-Bitta Naika land bearing Survey No. 131-2D measuring 3 acres 30 cents. Similarly by subsequent order dated 21-11-1979, the Tribunal granted to the 5th respondent-Janu Naika land in Survey No. 468-3E measuring 76 cents.

(c) The landlord assailed the order in W.P. Nos. 30983, 28328 of 1993 and 28354 of 1997. This Court allowed the writ petitions setting aside the order of the Tribunal and remanded it back for consideration in accordance with law.

(d) During remand proceedings, respondents 3 and 4 died and an application was filed by the legal heirs to come on record. They filed an affidavit supporting their claim in the form of examination-in-chief. The 3rd respondent''s son-Shyam Naika, 4th respondent''s son-Harisha and the 5th respondent who was alive filed separate affidavits in the form of examination-in-chief, but they did not tender themselves for cross-examination which was essential. They failed to appear before the Tribunal and consequently did not subject themselves to cross-examination. Consequent to their absence, petitioner could not test the veracity of their statements in the affidavit, leaving the affidavits as untested testimony.

(e) In the resultant position, the affidavits filed remained only as deposition in examination-in-chief without being tested in cross-examination as is required under the Indian Evidence Act, 1872. The Tribunal ignoring this fact, proceeded further. As far as the landlord is concerned, petitioner''s daughter-Kasturi R. Shetty appeared before the Tribunal and deposed in the form of examination-in-chief and tendered herself for cross-examination, but neither the 5th respondent who was alive nor the legal heirs of respondents 3 and 4 cross-examined her. Consequently her sworn testimony in the affidavit given in the form of examination-in-chief remained unimpeached. As she was not cross-examined, her testimony was unshaken and was sufficient evidence in law to be taken into consideration.

(f) The Tribunal ignoring this aspect, proceeded to determine the question of tenancy and has once again granted occupancy to the respondents by its order Annexure-A. Later in view of the amendment to the Karnataka Land Reforms Act and Karnataka Land Reforms Rules, 1974 thereunder, particularly Rule 17 of the Rules, the cases stood transferred to the jurisdiction of the High Court and thus the writ petitions gained access to this Court.

(g) It is material to note respondents 3 to 5 despite grant of tenancy in respect of lands mentioned above, did not feel satisfied and questioned the order seeking grant of excess land. Petitioner-landlord being seriously aggrieved by grant of tenancy to the respondents without there being any acceptable evidence on record to substantiate their claim, questioned it. In these writ actions, the landlords have assailed grant of tenancy, while the tenants seek grant of extended land.

The question now is, whether the Tribunal could have granted occupancy right to respondents 3 to 5 in the absence of any evidence in support of their claim. Needless to observe that even if the application for grant of tenancy is filed, the Tribunal is required to conduct an inquiry in the manner known to law following the procedure prescribed. It has to record evidence in support of the claim of the respective parties and give opportunity to the adversary to test it. There was absolutely no evidence on record by the applicants and thus no material to accept their case.

Be that as it may, even the evidence tendered by the landlord was not questioned by the tenants. In the circumstances, I find the order passed by the Tribunal is untenable. It is vitiated for not following the procedure prescribed. It is untenable also because tenancy right has been granted to the respondents without any material proof by the supporting claims. So far as the tenants are concerned, the question of allowing the writ petitions does not arise since the very basis of grant is untenable.

In the given set of circumstances, I am satisfied the order impugned passed by the Land Tribunal which is unsustainable, is liable to be quashed. Accordingly the same is quashed. However, the matter is remanded to the Land Tribunal to conduct a fresh inquiry in the manner prescribed by law and to decide the issue of tenancy only if the tenants substantiate it with acceptable evidence. If they default, the Tribunal can proceed to decide the issue based on the evidence tendered by the landlord-petitioner. In the result, Rule issued is made absolute. The writ petitions are allowed. The order dated 5-9-2003 Annexure-A is quashed. Parties are directed to appear before the 1st respondent on 5-3-2014 and before the 2nd respondent on 12-3-2014 without accepting further notice from the Tribunal.

Mr. D. Ashwathappa, learned Additional Government Advocate, is permitted to file memo of appearance within four weeks.