Anthony D''Souza and Others vs Robert D''Souza and Others

Anand Byrareddy, J.—1. Heard the learned counsel for the petitioners and the learned counsel for the respondents.

It is the case of the petitioner, who is dead and is represented by his legal representatives, that the ancestors of the petitioner were in possession of the land bearing Survey No. 62/2C, measuring 27 cents of Bolur village in Mangalore Taluk as chalageni tenants since the year 1920 and subsequently, the petitioner, who is no more and his brother Pascal D''souza had been in possession and enjoyment of the land at all points of time including as on 1.3.1974 and immediately prior thereto. And that the first respondent was never in possession of the land at any point of time.

It is stated that in the year 1958 C.S. D''souza appears to have purchased the mooli right in respect of the land in question along with other lands. Subsequently in the year 1968, W.D''Costa, the father of respondents No. 2 to 4 had filed a suit in OS 571/1968 against C.S. D''Souza for recovery of amount and had obtained a decree and thereafter purchased the mooli right of C.S. D''Souza at a court auction in Execution Case No. 258/1969. With the coming into force of the Amendment to the Karnataka Land Revenue Act, 1974, the petitioner and the first respondent and his brother C.S. D''Souza had filed separate applications in Form No. 7 seeking grant of occupancy rights in respect of the land in question and other related properties.

The Land Tribunal, by its order dated 24.8.1981, had granted occupancy rights in favour of the petitioner and had rejected the claim of the first respondent and Edward Alva, on the basis of the consent given by the landlord W.D''Costa. The Tribunal had relied upon recitals in the RTC for the year 1968-69 which showed the name of the petitioner and his brother, Pascal D''Souza in respect of the land in question. However, the Tribunal had granted occupancy rights in favour of the first respondent and C.S. D''Souza in respect of certain other lands belonging to W.D''Costa.

Challenging the order of the Tribunal granting occupancy rights in favour of the first respondent and C.S. D''Souza, the landlord W.D''Costa had filed a writ petition in WP 42188/1982 before this court and the first respondent and C.S. D''Souza had also filed a writ petition in WP 28202/1982 insofar as the rejection of their claim for grant of occupancy rights in favour of the petitioner. This court, by its order dated 14.3.1985, allowed both the petitions and had remanded the matter to the Tribunal for fresh disposal. The landlord W.D''Costa had never challenged the order granting occupancy rights in favour of the petitioner herein.

Upon remand, the Tribunal by its order dated 4.4.1989 again granted occupancy rights in favour of the petitioner on the basis of a spot inspection report and rejected the claim of the first respondent and C.S. D''souza in respect of all the lands including the land in question. As against which, the first respondent and C.S. D''souza had preferred a writ petition in WP 20309/1993 before this court, which was allowed and the matter was remanded to the Tribunal by order dated 5.11.1999. On such remand, the Tribunal, by the impugned order, has rejected the claim of the petitioner on the ground that there was no relationship of landlord and tenant and that they had failed to prove their possession as on 1.3.1974. As against that order, the first respondent has already filed a writ petition in WP 16246/2005. It is in this background that the present petition is filed.

It is pointed out that the Tribunal had failed to consider the lawyers notice dated 17.4.1973 issued by the landlord W.D''Costa wherein he had admitted the tenancy of the petitioner and had called upon the petitioner to pay geni and therefore the Tribunal had failed to appreciate the admissions made by the landlord on the previous occasion regarding the tenancy of the petitioner in respect of the land in question. Therefore, the Tribunal had overlooked the material evidence in support of the petitioner''s case and has rejected the application unfairly thereby resulting in a miscarriage of justice. It is this which the learned Counsel for the petitioner would emphasize while also pointing out that the order of the Tribunal dated 24.8.1981, had not been challenged whereby occupancy rights were granted to the petitioner in respect of the land in question and therefore, the legal representatives of W.D''Costa are estopped from contending that there is no relationship of landlord and tenant. The Tribunal finding that possession has not been proved is contrary to the geni receipt dated 6.3.1957 to indicate that C.S. D''souza had received the rent for the years 1956-57 in respect of the land and that it had failed to consider the entries in the RTC which showed the possession of the land of the petitioner during the year 1968-69 and that the Tribunal had granted occupancy rights to the petitioner on the basis of a spot inspection report. It is repeatedly observed by the Tribunal on more than one occasion of the admission as to possession of the lands by Anthony D''Souza since the year 1970 though it was claimed that possession was taken forcibly. The order, it is pointed out, is not a speaking order and therefore runs counter to Rule 17 of the Karnataka Land Reforms Rules, 1974.

While the learned counsel for the respondent would vehemently oppose the petition. It is denied that there was agrarian relationship between the petitioner and Pascal D''Souza and that the land was held on chalageni rights was required to be established by the petitioner. It is vehemently denied that the petitioner has established that he was in possession of the land as on 1.3.1974 or immediately prior thereto. It is admitted that the land in question was purchased by late C.S. D''Souza in the execution petition and thereafter by W.D''Costa. Though in the first instance, the Land Tribunal had granted occupancy rights in respect of certain portions of land, the same was challenged by way of a writ petition as already stated by the petitioner. Upon remand, the Land Tribunal having granted aforesaid extent of 27 cents in the land in question was again subject matter of challenge and that petition having been allowed, the matter again having been remanded, the finding by the Tribunal thereafter that there was no landlord and tenant relationship and having rejected the petition, cannot be found fault with.

It is asserted that there were several items of land which were located at Bolur village in Mangalore, in respect of which applications were made. The lands were in the possession of the petitioner till such time it was sold at an auction by the Court of the Principal Munsiff, Mangalore wherein the predecessor-in-title of respondents No. 2, 3 and 4 had purchased the subject properties. Pursuant to the sale, actual physical possession of the lands was handed over to the predecessor-in-title of the respondents, namely Dr. Wilfred D''Costa, as evidenced by order dated 12.4.1972, issued by the Head Munshi of the Court of Munsiffs, Mangalore. A copy of the mahazar prepared by the Court bailiff is also annexed to the statement of objections. The said transfer had occurred as on 23.5.1972 much prior to the Karnataka Land Reforms Amendment Act came into force with effect from 1.3.1974. Therefore, neither the petitioner nor any other tenant were in possession of the said lands as on the effective date and therefore, there was no landlord and tenant relationship as on the effective date.

It is also pointed out that the lands in question are in the heart of Mangalore City and have lost their agricultural character over a period of time and would no longer be within the jurisdiction of the Land Tribunal. It is contended that the admission as to the petitioner being in possession of the land in question is not entirely correct, though the son of the first respondent had made statements admitting such possession of the petitioner. This court, which was seized of the writ petition filed by the first respondent in WP 42188/1982 had set aside the order of the Tribunal and remanded the matter for fresh consideration.

By way of reply, the learned counsel for the petitioner would contend that the finding of the Tribunal is contrary to the findings arrived at earlier on the same set of facts and material on record and therefore cannot be reconciled with the categorical findings arrived at earlier. In that, the contention that there was an auction sale of the land and the same has been purchased by the first respondent and the occupants had been evicted from the land in question cannot be readily accepted. As respondent No. 1 had only claimed to have purchased the mooli rights and not moolgeni rights, the moolgeni right therefore would continue with the tenants unless the moolgeni was terminated in the manner known to law. There is no indication of the tenancy having been terminated and therefore the very sale of the land does not efface the tenancy and cannot be cited by the respondent as an instance of the petitioner not being in possession of the land as on the relevant date.

It is further contended that the claim as to the land being in the middle of the Mangalore City and therefore having lost its agricultural character also cannot be readily accepted. If the land is shown as agricultural land as on date in the revenue records, as it is identified by survey number unless there was a formal conversion of the land to non-agricultural user, it is not capable of being called as non-agricultural land. Further, it is relevant as to the possession of the tenant as on 1.3.1974 and the nature of the land as on 1.3.1974. Even if the nature of the land has been transformed by sheer efflux of time, the right of the tenant would crystallize as on 1.3.1974 and it is that which is relevant. Therefore, the learned Counsel would seek that the petition be allowed as the Tribunal has committed a palpable error in overlooking the material evidence on record and demonstrate the possession of the tenant as on 1.3.1974.

Given the above facts and circumstances, the petitioner claiming as moolgeni tenant was required to establish that the land in question was agricultural land and that it was in the cultivation of the petitioner and that as on 1.3.1974, the petitioner was in occupation of the land. The issue as to whether the land in question was agricultural land was absent to the mind of the Tribunal as no such issue was raised and therefore it could not be relevant at this point of time in these proceedings to address that issue.

Insofar as the possession of the petitioner as an agriculturist as on 1.3.1974, is not established by any material on record. The documents referred to are much prior to the said date. It is on record that the vacant possession of the land was delivered pursuant to the sale deed effected in the execution case referred to hereinabove. Therefore, the question of the petitioner having reentered the land is not established. Even if there was any such reentry, it cannot be said that it could have been lawful for the petitioner to have resumed the occupation of the land and unless there was lawful occupation of the land as a tenant, it would not entitle the petitioner to claim occupancy rights.

The contention that the petitioner was a moolgeni tenant and the tenancy was not terminated and it could not have continued and would have continued to operate unless so cancelled, is a contention which would have to be seen in the light of the material document whereby vacant possession of the land is said to have been delivered to the purchaser. If that be so, it was for the petitioner to have established that the petitioner had asserted moolgeni right and had sought reentry into the land. In the absence of which, it cannot be said that an unilateral claim by the petitioner of having continued in occupation as on 1.3.1974 can be accepted.

Accordingly, there is no merit in this petition and the same stands dismissed.