Chand Saheb vs The Land Tribunal, Udupi Taluk and Others

Anand Byrareddy, J.—1. Heard the learned counsel for the petitioner and the learned Senior Advocate Shri Ashok Haranahalli appearing for the learned counsel for the respondents.

This petition has a chequered history and the brief facts are as follows:

The petitioner, his brother Kasim Saheb and their mother Roshanabi, claimed as tenants in respect of the land belonging to one Sarvothama Bhat, the husband of Respondent No. 2 and brother of Respondent No. 3 and father of other Respondents 4 to 8.

They had filed Form No. 7 claiming as tenants in respect of land in Sy. No. 23/8C measuring 60 cents and land in Sy. No. 23/1C7 measuring 15 cents situated at Budnar, Badagubetta village, Udupi Taluk. It is claimed that the mother of the petitioner and after her, the petitioner and his brother, had been in possession of the land since the year 1930 and the Land Tribunal, after holding an enquiry, had granted occupancy rights in favour of the petitioner and his mother by its order dated 4.12.1975.

The respondents herein, aggrieved by the order of the Tribunal, had challenged it by way of a writ petition in W.P. No. 3754/1976. This Court, by its order dated 4.3.1983, allowed the writ petition in the following terms:

"In the result, this petition is allowed, the impugned order is quashed and the matter is remitted to the Land Tribunal for fresh disposal of the claim of Respondents 1, 2 and 3 insofar as it relates to lands in Survey No. 23/8 measuring 60 cents, after holding an enquiry in strict compliance with Rule 17 of the Rules."

The Land Tribunal had thereafter taken up the matter for reconsideration and rejected the claim of the petitioner seeking grant of occupancy rights in respect of land bearing Sy. No. 23/8C, however granted occupancy rights in respect of 15 cents in Sy. No. 23/1C7, which was challenged by the petitioner herein in a Writ petition in W.P. 74/2003 which was allowed in part by an order dated 14.07.2009 remanding the matter for fresh consideration of the claim insofar as land bearing Sy. No. 23/8C.

A writ appeal came to be filed against the said order in W.A. No. 3032/2009 by the respondents, which was disposed of by a judgment dated 5.4.2013 confirming the order of the learned Single Judge. This was carried by way of a Special Leave Petition in Civil Appeal 9275/2014, which was allowed by the Supreme Court by its judgment dated 26.09.2014 setting aside the orders passed both by the learned Single Judge as well as by the Division Bench and has remanded the matter for a fresh consideration on merits and accordingly, the petition is again being considered by this Court.

The learned counsel for the petitioner would firstly contend that the Tribunal was in error in proceeding to consider the matter afresh in relation to both the items of land. The order of this Court dated 4.3.1983 required the Tribunal only to consider the case of the petitioners insofar as it related to land bearing Sy. No. 23/8. The Tribunal was in error in considering both items of land when there was a specific direction by this Court to consider the case only insofar as it related to the above said survey number.

It is pointed out that there were at least 8 gaini receipts produced by the petitioner which were available on record and the Tribunal has glossed over the same in holding that the petitioner had failed to prove that the land was tenanted and was under the occupation of the petitioner. Though the petitioner claims that he was shown as cultivating the land even during the year 1967-68, thereafter there were no RTCs available to demonstrate that the petitioner was indeed cultivating the lands.

However, the Tribunal has glossed over this aspect of the matter in not addressing the circumstance that it was significant as to who was cultivating the land as on the relevant date, namely on 1.3.1974. As the Tribunal has failed to address this aspect of the matter, the matter would have to be remanded with a specific direction for the Tribunal to arrive at a finding as to who was in occupation and cultivating the land as on 1.3.1974. In the absence of any such finding, rejection of the petitioner''s claim was bad in law.

It is also not in dispute that the land in question was agricultural land, as there were 10 coconut trees, 8 jackfruit trees and 2 mango trees and the same was certainly agricultural land and could not have been denied by the Tribunal without any contra-evidence to that effect.

While the learned Senior Advocate would submit that firstly, the contention that the order of this Court dated 4.3.1983 was specific in its direction, that the enquiry by the Tribunal was to be conducted only respect of land bearing Sy. No. 23/8 measuring 60 cents, is an incorrect interpretation. The petition was allowed in toto on the finding that the enquiry held was bad in law, which would permit the claim in respect of both items of land which was the subject matter of From No. 7 and it cannot be interpreted to mean that the petition was allowed partly and it was set aside only in respect of land bearing Sy. No. 23/8, which interpretation is not available having regard to the order of the Tribunal having been quashed in its entirety. In any event, he would point out that occupancy rights were sought for in respect of the house premises which is existing on the land bearing Sy. No. 23/1C7, which was not maintainable on the face of it.

Insofar as the other findings of the Tribunal in holding that the petitioners have not established their claim, are on categorical findings and it cannot be construed or characterized as being bereft of reasoning. The findings rendered in detail by the Tribunal are as follows:

That Roshanbi was merely a tenant in respect of a building. This finding is on the basis of an agreement entered into between the landlord and Roshanbi, which was part of the record. Therefore, it cannot be wished away as being a nebulous document or not indicating the true nature of the tenancy, though the tenancy was in respect of a house premises and therefore, it cannot be treated as agricultural land.

It is further found by the Tribunal that there was no agrarian relationship between the claimant and Sarvotham Bhat who was the predecessor of the respondents. The claimants have failed to prove that the lands were ''lands'' as defined under Section 2(A)(18) of the Karnataka Land Reforms Act, 1961. It is also not true that the petitioners were shown either as cultivators or in occupation of the land as on 1.3.1974, for admittedly, there were no RTCs for the relevant period.

Insofar as the only RTCs available which are of an earlier period, namely 1968-69, and 1967-68, which is confirmed by the learned Government Pleader who has produced the record, the petitioners are not shown as cultivators during the relevant period. Therefore, the records that are available which have not been supplemented by the petitioner in any manner to be close to the period 1.3.1974, do not indicate that the petitioners were cultivating the land. In which event, it was certainly not for the Tribunal to hold that the petitioners were indeed cultivating the land as on 1.3.1974. This finding of the Tribunal hence cannot be faulted. Further, the Tribunal has held that Roshanbi was engaged in manufacture of Beedis and her two sons were employed, one in the Posts & Telegraphs Department and other in Kasturba Medical College, Manipal and they were not agriculturists. These findings were categorical. Hence, the challenge by the petitioners on a limited ground that there were eight documents pertaining to tenancy which are of some vintage pertaining to the year 1938-39, etc., would not establish that there was an agrarian relationship and that they were cultivating the land as on 1.3.1974.

The only document available is a rent bond executed in respect of the house premises. The rent receipts on record relate to the same property. Therefore, it cannot be claimed as evidencing an agrarian relationship or establishing cultivation of the land by the petitioners. In the absence of the petitioners demonstrating that they were cultivating the land immediately prior to 1973-74, or as on 1.3.1974, it cannot be held that there was any material which the Tribunal has overlooked in rejecting the application of the petitioners for grant of occupancy rights.

Incidentally, in the year 1972, there was a suit filed by Sarvotham Bhat against the petitioner herein, his mother Roshanbi and others seeking perpetual injunction and there was an order of temporary injunction granted in favour of the plaintiff and that order was in force till the claim for occupancy rights was lodged before the Tribunal. And the interim injunction granted in that suit had continued to be in force, which would mean that the petitioners were never in occupation of the land in question, on a prima facie test. Further, during cross-examination, the petitioner and his brother who is no more, had admitted that they were employed in Kasturba Medical College, Manipal, and the Department of Posts.

In respect of cultivation, there was only reference to fruit bearing trees which had stood on the land since generations. This is also borne out from the evidence of one of the witnesses for the petitioners.

In the light of these materials available, it cannot be said that the Tribunal has committed any error in rejecting the application of the petitioner.

Hence, the petition stands rejected.