C.S. Ramachandra and Others vs Hanumanthayya S. and Others

Anand Byrareddy, J.—1. Heard the learned Counsel for the petitioners and the learned Counsel for respondent No. 1 as well as the learned Government Pleader.

The petitioners contend that one Hanumanthaiah and Kempaiah had filed individual applications before the Land Tribunal, Ramanagaram seeking occupancy rights in respect of the land in survey Nos. 494 of Harisandra village, Ramanagaram Taluk, measuring 4 acres 10 guntas. The petitioners herein, who are landowners had filed a counter disputing the claim of the applicants as regards their entitlement to occupancy rights. It is claimed that one C. Seetharamaiah, the father of the petitioners, had purchased the land measuring 5 acres 1 gunta, including phut kharab of 10 guntas in land bearing Survey No. 494 of Harisandra village, at an auction sale conducted by the revenue authorities. Thereafter, Seetharamaiah and his family had been cultivating the lands through out. The claim of the applicants is, therefore, false.

The Land Tribunal, however, on conclusion of its inquiry, had passed an order dated 17.4.1979 granting occupancy rights in favour of Kempaiah, the second respondent. It is stated that Hanumanthaiah @ Doddonu, the father of respondent No. 1 and Kempaiah, the brother of Hanumanthaiah @ Doddonu had filed applications before the Land Tribunal. Hanumanthaiah @ Doddonu had filed a writ petition against the order passed by the Tribunal in a writ petition in WP 33729/1981, which was allowed and the matter was remanded to the Tribunal for a fresh consideration by order dated 25.2.1985. The Land Tribunal, after holding an inquiry had passed a further order granting occupancy rights in favour of Hanumanthaah @ Doddonu, against which, the petitioners had filed a writ petition before this court in WP 11908/1993, which was disposed of by order dated 17.9.1997, again remanding the matter to the Land Tribunal whereby the parties were permitted to tender fresh evidence and the Tribunal thereafter passed the impugned order.

It is contended by the learned counsel for the petitioners that the petitioners had produced the record of rights and pahani extracts for the period 1972 to 1999 before the Land Tribunal and a significant document pertaining to the year 1973-74 is produced at Annexure-E. It is evident from the said document that as on 1.3.1974, the petitioners'' father, Seetharamaiah as a land owner was in possession of the land. The finding of the Tribunal that the applicant Hanumanthaiah was a tenant as on 1.3.1974 is therefore, an incorrect finding and is not based on any material on record. Admittedly, respondent No. 1, who is the son of Hanumanthaiah @ Doddonu has not produced any document to indicate that his father was in possession and cultivation nor his uncle Kempaiah was in possession and cultivation of the land as on 1.3.1974. The documents produced by respondent No. 1 are pertaining to possession and occupation by Kempaiah from the year 1974-75 to 1982-83 and not in the name of Hanumanthaiah @ Doddonu or in favour of the present respondent No. 1. Therefore, this is a significant circumstance on which the Tribunal ought to have given a finding. There is no such finding. The evidence adduced by the applicants was minimal and hence it could not be the basis on which the Tribunal could have pronounced that the applicants had made out a case for grant of occupancy rights. The only reasoning adopted by the Tribunal is that admittedly, Kempaiah was the uncle of respondent No. 1 and since there were applications filed by Hanumanthaiah @ Doddonu and Kempaiah, who were brothers, it would be presumed that they were in joint possession and cultivation of the land. The possession of one can be construed as possession other and since there was material to show that from 1974 and onwards, Kempaiah''s name was reflected in the revenue extracts, it can be presumed that it was occupied by them as on the relevant date and thereafter and hence were entitled to occupancy rights. This, the learned counsel would submit, is impermissible even assuming that the name of Kempaiah was reflected in the RTC extracts, it cannot also be presumed that they were in joint cultivation for the reason that the applications made by Kempaiah and Hanumanthiah @ Doddonu were individual applications, which indicated that the land was being cultivated jointly, in which event, there was no room for the Tribunal to presume that the cultivation was joint. There was no express statement made by either of the applicants. Hence, the presumption on which such finding is arrived at is wholly without basis. Therefore, the only reasoning on which the Tribunal has opined that the applicants had made out a case for grant of occupancy rights cannot stand the test of reason nor is it based on legal presumptions. The learned counsel would submit that the relevant date on which the occupancy rights could be determined is 1.3.1974. In other words, a tenant claiming occupancy rights would necessarily have to demonstrate that he was cultivating the land as on 1.3.1974. The production of material to show that the tenant may have been in occupation subsequent to the said date falls into insignificance, for it is the settled proposition that it is 1.3.1974, which is the relevant date, on which any tenant would have to establish his possession. Though the earlier view that even on a date prior to 1.3.1974, if a tenant could demonstrate his possession of the land, it would suffice ground for seeking occupancy rights, has been clarified and it has been emphasized that unless the tenancy and occupation is demonstrated as on 1.3.1974, any amount of material to show possession subsequently would be immaterial. In this regard, the learned counsel would place reliance on a division bench judgment of this court in Rayappa Basappa Killed vs. Land Tribunal, , 1976 (1) KLJ 219 and in Hire Masudi Imam (lamia Masjid) vs. Land Tribunal, Shirguppa, 1977 (1) KLJ 263.

On the other hand, the learned Counsel for the respondent No. 1 would vehemently contend that this is the third round of litigation. In the earlier round, the occupancy rights have been granted in favour of the present petitioners. The petitioners seek to rely on an affidavit by Kempaiah, whereby he has declared that neither he nor his family members were cultivating the land in question. This is directly contrary to his earlier evidence tendered before the Tribunal, whereby he has clearly stated that it is his brother Hanumanthaiah @ Doddonu and the present respondent No. 1, who were cultivating the land in question and that he had no objection if occupancy rights are granted in their favour. After having made such a statement before the Tribunal, it is inexplicable that he has filed an affidavit in support of the petitioners herein. There is no explanation as to why he should file such an affidavit. He has not appeared before the Tribunal and has not offered himself for cross-examination. The contradictory statement made by Kempaiah in the affidavit cannot be reconciled by his earlier statement. Therefore, the affidavit cannot be read in support of the petitioners'' case. If on the other hand, it is not in dispute that from 1974-75 onwards, the land is being shown in the possession of Kempaiah and Hanumanthaiah @ Doddonu, respondent No. 1''s father, such continued possession from 1974-75 would also meet the requirement of demonstrating possession as on 1.3.1974 as well. Though the petitioners may have produced a document to show the possession of Seetharamaiah, the father of the petitioners as on 1.3.1974, it cannot be disputed that from 1974-75 onwards, it is the respondents, Kempaiah and his brother, Hanumanthaiah @ Doddonu, who have continued in possession and thereafter by respondent No. 1.

Having regard to the rival contentions and on a perusal of the record, the Tribunal ought to have arrived at as to who was cultivating the land as on 1.3.1974. The finding of the Tribunal is that it was respondent No. 2 and his family members. And on a presumption that though Kempaiah had filed an individual application, since his brother Hanumanthaiah @ Doddonu had also filed an application, the Tribunal proceeds to hold that Kempaiah and Hanumanthaiah were jointly cultivating the land as on 1.3.1974. Besides this, there is no other document relied upon by the Tribunal to arrive at such a finding. Consequently, the Tribunal has overlooked the RTC extract, which reflected that the father of the petitioners, Seetharamaiah was cultivating the land from 1972 and the records made available with reference to the RTC for the year 1972-73 and 1973-74, thereby leading to a presumption that as on 1.3.1974, it was Seetharamaiah who was in cultivation of the land. This was a significant circumstance which has been overlooked by the Tribunal.

The further finding of the Tribunal that Kempaiah and Hanumanthaiah @ Doddonu were jointly cultivating the land in question is on a presumption, for the applications filed by Hanumanthiah @ Doddonu and Kempaiah were individual applications. There was hence no ground or basis for the Tribunal to have presumed that they were in joint cultivation merely because they were brothers. This is the other significant circumstance which would dilute the finding of the Tribunal. It is not the case of the first respondent that the documents stood in his father''s name even from 1974-75 and the RTC extracts would indicate that Kempaiah was in possession of the land from 1974-75. Therefore, the case of the first respondent to that extent would get further diluted. Kempaiah, on the other hand, having made a statement in evidence before the Tribunal that occupancy rights may be granted in favour of his brother and brother''s sons and thereafter to have filed an affidavit in favour of the petitioners to claim that he was never in occupation of the land and his brother or brother''s family had not cultivated land, is an inconsistent statement by him, therefore, rendering his evidence as well as the affidavit untrustworthy and it cannot be relied upon either in favour of the petitioners or in favour of respondent No. 1. If such evidence of Kempaiah and his affidavit is eschewed, it would leave only the RTC extracts, which indicated the occupation and cultivation of the land as on 1.3.1974, as being material documentary evidence to consider grant of occupancy rights. In which event, it cannot be said that respondent No. 1 and his father was in occupation and cultivation as on 1.3.1974.

To fortify this position as to how 1.3.1974 is significant date, with respect of which occupancy rights ought to be conferred, is laid down by a division bench of this court in Rayappa Basappa Killed vs. Land Tribunal, , 1976 (1) KLJ 219. The division bench of this court has observed that where an alleged tenant has not been in possession of the agricultural land and he has not been cultivating it personally immediately prior to the date of vesting, namely, 1.3.1974, such land does not vest in the State Government under Section 44 of the Karnataka Land Reforms Act, 1961, and if it does not vest in the State Government, the tenant is not entitled to be registered as occupant.

Similarly, in Hire Masudi Imam (Jamia Masjid) vs. Land Tribunal, Shirguppa, 1977 (1) KLJ 263, the division bench has further expounded as to the presumption that would follow with reference to the record of rights. It is held thus:-

"Verification of the particulars mentioned in the application with reference to the Record of Rights ins necessary for the reason that under Section 133 of Karnataka Land Revenue Act, the entries in the Record of Rights are presumed to be correct. If the Record of Rights do not show the name of the person claiming to be the tenant as the person cultivating the land immediately prior to 1st of March 1974, which is the relevant date, the presumption is that the land has not vested in the State Government under Section 44 of the Act. Until that presumption is rebutted either by the State or by the person claiming to be a tenant, the presumption is that the landholder is personally cultivating the land immediately prior to 1st March 1974."

Therefore, the law is well settled in this regard that unless it is established that immediately prior to 1.3.1974, the tenant therein claiming occupancy rights demonstrates that he would not be entitled to claim such occupancy rights, the land cannot be presumed to vest in the State Government.

The Government Pleader would assert that it is evident from the record that Seetharamaiah was in occupation of the land as on 1.3.1974 and immediately prior thereto.

Therefore, on this short ground, the petition would have to be allowed.

Accordingly, the petition is allowed. The impugned Annexure - K is quashed.