C. Narasappa vs State of Karnataka and Others

Anand Byrareddy, J.—1. Heard the learned Senior Advocate Shri Vivek Reddy appearing for the counsel for the petitioner and the learned counsel for the respondent as well as the learned Government Advocate.

It is the petitioner''s case that the petitioner is a tenant in respect of land bearing Sy. No. 155 measuring 1 acre 37 guntas of Vijayapura village, Devanahalli taluk, since 35 years from the date of petition and that he was cultivating the land and the said land measures 1 acre 37 guntas. The petitioner claims to have filed Form 7-A under Section 77-A of the Karnataka Land Reforms Act, 1961, seeking grant of the land in his favour and the petitioner had produced the RTC extract for the year 1973-74 to 1977-78 as well as an electricity bill which demonstrates that he was cultivating the land. It is further pointed out that respondent No. 3 was employed as a bus driver with the Karnataka State Road Transport Corporation, Chikkaballapur Depot and therefore he could not be claiming as an agriculturist cultivating the said land. On the basis of the application filed by the petitioner the second respondent Assistant Commissioner had issued a public notice, apart from calling for report from the concerned Revenue Inspector. It is after holding such an enquiry that the petitioner was found to have been cultivating the land and it was held that he was entitled for occupancy rights and that he had not filed an application in Form No. 7 under Section 48(1)(A) of the Karnataka Land Reforms Act. He had also asserted that his father was a tenant in respect of the land and that rents were paid in respect of the tenancy. However, the third respondent held that the applicant was in possession and continuously cultivating the land from 01.03.1974 to 1997 and even as per the pahani the applicant seemed to have been cultivating the land at the relevant point of time and this was also affirmed by the report of the Revenue Inspector and accordingly had granted the land bearing Sy. No. 155 measuring 1 acre 37 guntas in favour of the petitioner. The third respondent had challenged that order by way of an appeal before the Karnataka Appellate Tribunal. The Tribunal after hearing the parties has allowed the appeal and had set aside the order passed by the second respondent. The petitioner being aggrieved by the same is before this Court.

It is contended that there was ample material, apart from the documents referred to by the Assistant Commissioner, to demonstrate that the petitioner was indeed cultivating the land as on the appointed date namely, 01.03.1974 as a tenant and that before him his father was cultivating the same continuously and it was also demonstrated from a Criminal Case instituted when the petitioner and his family members were assaulted by the rival group when they were cultivating the land and one Kum. Manjula was even killed, in that skirmish, which occasion was subject matter of a Sessions Case No. 48/2003 before the competent Sessions Court, the third respondent was convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. This sufficiently demonstrated that the petitioner and his family were cultivating the land and were in continuous possession. Therefore, there was no justification in the Tribunal having set aside the order passed by the Assistant Commissioner and having remanded the matter and it is in this vein that the learned Senior Advocate would assert the case of the petitioner.

On the other hand the learned counsel for the third respondent would point out that the land in question belonged to one Dodda Munishamappa. Dodda Munishamappa was married to Munichinnamma and they had no children. Subsequent to the death of Dodda Munishamappa who had inherited the property adopted Muni Lakshmamma, the sister of the petitioner and Muni Lakshmamma was married to deceased respondent No. 3, namely V.M. Anjanappa and during the lifetime of Muni Lakshmamma she was gifted the property bearing Sy. No. 155 measuring 1 acre 37 guntas under a registered Gift Deed dated 16.09.1966 and after the death of Muni Lakshmamma the name of deceased Anjanappa was incorporated in the revenue records and Anjanappa and his first wife Muni Lakshmamma did not have any children and they had adopted Srinivasa. Thereafter Anjanappa and Srinivasa were in joint possession of the land. The petitioner is a total stranger who had no right in respect of the land and was seeking to interfere with their possession. It is at that stage O.S. No. 87/1995 was filed against the petitioner seeking a declaration and injunction before the Court of Additional Civil Judge (Senior Division), Bangalore and during the pendency of the suit the petitioner had trespassed the land in question, at which time deceased Anjanappa and his son Srinivasa sought amendment of the plaint seeking possession of the property in question. The petitioner had appeared in the case and had set up a defence to the effect that he was the faster son and had inherited the property. Muni Chinnamma had also set up a defence that he had perfected the title by adverse possession. The petitioner in turn had filed a civil suit in O.S. No. 339/1995 before the Additional Civil Judge and JMFC, Devanahalli seeking permanent injunction. Both the suits had been clubbed and common evidence was recorded and during the pendency of the suits the petitioner had also filed yet another civil suit in O.S. No. 281/1995 seeking a declaration that he had perfected his title by adverse possession that suit was dismissed. The trial court on appreciation of the evidence in O.S. Nos. 339/1995 and 281/1999 which were the earlier suits has decreed in favour of the respondent No. 3 and the suit of the petitioner for permanent injunction was dismissed. This was challenged by appeals in RA Nos. 14/10 and 15/10 before the Fast Track Court, Devanahalli. The appellate court dismissed the appeals on merits which has been questioned in Regular Second Appeals in R.S.A. Nos. 1621 and 1622 of 2012 in the appellate jurisdiction of this Court which is pending consideration as on today. These circumstances have been suppressed by the petitioner in seeking to claim occupancy rights and this is very significant in addressing the petitioner''s case. If the petitioner was seeking to set up a plea of adverse possession his claim of lawful tenancy in respect of the land would not arise and therefore the dual claim of declaration of title as well as seeking occupancy rights as a tenant, while also claiming adverse possession is wholly inconsistent and cannot be sustained. It is on that ground alone the learned counsel would submit that the petition would have to be dismissed in limine.

Given the above circumstances which is not denied and since the appeals in Regular Second Appeals are pending even as on date it would have to be presumed that the petitioner seeks to pursue his claim of adverse possession in which event there is admission of the ownership of the respondent No. 3 or otherwise. The claim of adverse possession would be set up and if the petitioner is claiming adverse possession his claim of lawful tenancy is not tenable. Accordingly the petition lacks merit and is dismissed.