Galappa vs The Chairman Land Tribunal, Hospet Taluk and Others

B. Veerappa, J.—The petitioner claiming to be a tenant is challenging the order passed by the Land Tribunal dated 28.5.2002 made in Case No. 1533/LR/75-76 rejecting his claim of tenancy in respect of Old Sy. No. 64/2 and New Sy. No. 127/3 measuring 3 acres 75 cents situated in Sankalapur village, Hosapet taluk, Bellary District, is before this Court.

The brief facts of the case are that according to the petitioner, he was the original owner of the lands in question measuring 4 acres 87 cents in Sy. No. 127/3 and out of which, he has sold 3 acres 75 cents on 7.2.1963 in favour of Ayali Hanumanthappa who in turn sold the same in favour of the 3rd respondent under registered sale deed dated 31.5.1965. According to the petitioner he is in possession and cultivation of the said land as tenant since the time of his ancestors i.e. his grandfather and father. The petitioner further contended that the said land was being cultivated by his grandfather and father as tenants and that this petitioner was assisting them in their cultivation and after the demise of his grandfather and father, the petitioner continued to be in possession and cultivation as tenant of the said land. He also contended that one Ayali Hanumanthappa was the owner of the suit land and petitioner''s grandfather and father were paying Gutta amount of Rs. 3,000/- per year to Ayali Hanumanthappa and after the demise of his grandfather and father, petitioner continued to pay the Gutta amount to said Ayali Hanumanthappa. The petitioner states that he is personally cultivating the said land and raising jawar, bengal-gram, cotton and other crops in the said land. It is his further case, that subsequently as per instructions of Ayali Hanumanthappa, the petitioner went on paying Gutta to one Papanna Shetty in respect of said land as the same was sold to Papanna Shetty by Ayali Hanumanthappa. The petitioner submitted that the Pahani and RTC entries in respect of the said land from fasli years 1375 to 1388 and from the years 1972-1973 to 199-91 and for subsequent years stands in the name of the petitioner as tenant as per Annexures-A, B, C, D and E to the writ petition (Annexures A and B pertains to Sy. No. 9/5 for fasli years 1375-1376, 1377, 1378 and 1380 to 1387 and 1973-74, 1977-78). The said RTC entries are nothing to do with the suit schedule property. Annexures C, D & E pertains to Sy. No. 127/3 i.e. property in question. Column 12(2) for the years 1388-1392, 1983-84, 1985-1986 to 1990 shows the name of Heggalu Galappa in the cultivator''s column. At column 9 the name of respondent No. 3 herein is shown.

It is the further case of the petitioner that after coming into force of the Karnataka Land Reforms Act, the petitioner has filed Form-7 on 23.6.1976 in respect of land bearing Sy. No. 127/3 measuring 4 acres 87 cents (Records disclose that Original Form-7 was filed only for an extent of 3 acres 75 cents) and also stated that he was paying Gutta amount to one Papanna Shetty as he was his landlord. On the first occasion, the Land Tribunal by its order dated 12.01.1981 granted occupancy rights in favour of the present petitioner to an extent of 4 acres 87 cents even though Form No. 7 was filed for an extent of 3 acres 75 cents.

Against the said order the 3rd respondent herein filed W.P.20432/1995 before this Court and this Court after hearing both parties, by its order dated 1.6.1999 has remanded the matter to the Land Tribunal for fresh consideration, mainly on the ground that the real owner has not been impleaded to the proceedings. After remand, the Land Tribunal after holding enquiry and after recording statements of both parties as contemplated under Rule 17 of Karnataka Land Reforms Rules, by the impugned order dated 28.5.2002 rejected the claim holding that the petitioner has failed to prove his tenancy as on 1.3.1974.

Against the said order, the present writ petition is filed.

The respondent/State Government filed detailed objections and sought to justify the impugned order passed by the Land Tribunal and the State Government in paras-7 and 8 of the Statement of objections has specifically stated as under:

"7. It is submitted though the petitioner''s ancestors were the owner upto 07.03.1963 and cultivated the above said land personally. Afterwards, the petitioner has cultivated his remaining land unalienated 1 acre 12 guntas and he was not a tenant of 3 acres 75 guntas which has been alienated to the respondent No. 3 herein. The petitioner herein neither obtained a lease deed from Iyyali Hanumanthappa from respondent No. 3 herein after the alienation. He continued his cultivation in the remaining unalienated extent of 1 acre 12 guntas as an owner, he has not cultivated as a tenant. The RFRs entries shows the name of the petitioner after 1981 only on the basis of the Land Tribunal orders dated 12.09.1981. The entries for 1972-1973 to 1980-1981 no doubt in the name of the petitioners. But there are no documentary evidence to show that he was a tenant for 3 acres 75 guntas. The petitioner has not produced any documents having taken land on lease or any receipts having paid any lease amount to the respondent No. 5 herein. Sine the respondent No. 3 is an institution maintained accounts and audited every year through chartered accountant. There is no such entries in the account books regarding receipts having paid the lease amount by the petitioner.

It I submitted that the Settlement Officer has decided on 27.01.1973 under the Madras Act, 1948 though the Karnataka Land Reforms Act, 1961 has come into force from 02.10.1965. Though the Settlement Officer decided jointly in the name of the petitioner and the respondent No. 3 herein on 27.01.1973, without saying that the petitioner mother has sold 3 acres 75 guntas and in that transaction, the petitioner was a witnessee, for that extent. The respondent No. 3 is the owner and rest of the extent of 1 acre 12 guntas belong to the petitioner herein. The respondent No. 3 herein, after purchase should have got sub-divided but for non-enforcement of land records it has not been got done. The petitioner was once a land owner and without any lease deed he cannot claim as owner-cum-tenant. Out Hon''ble High Court decided this principle in ILR 2003 Karnataka Short Note No. 8, in that decision it is held that occupancy cannot be granted in favour of a person who is a real owner of the land."

The 3rd respondent herein also filed the Statement of Objections on 21.11.2005 and stated that after holding detailed enquiry the Land Tribunal passed the correct order and the petitioner has filed the above writ petition by suppressing the real facts and the petitioner has no locus standi to challenge the order of the Land Tribunal since the petitioner has sold the extent of 3 acres 24 cents in favour of K. Sujatha, Y. Venkateshwara Rao, Subramanya Eshwara Rao and K.R. Kaviraj on 15.9.1997. The Tribunal considering the entire material on record has negated the claim of the petitioner that he is a tenant as on 1.3.1974. The same is in accordance with law. Therefore he sought to dismiss the writ petition.

I have heard the learned Counsel for the parties to the lis.

Sri B.S. Kamate, learned Counsel for the petitioner has contended that the impugned order passed by the Land Tribunal ignoring the pahani records produced by the petitioner for the Fasli years 1375 to 1378, Fasli years 1380 to 1973-74 AD and Fasli years 1388 to 1983-84 AD which disclose the name of the petitioner has been entered therein as tenant in tenant''s column and that respondent 3 has admitted it in the cross examination of RW.1 that respondent-3 has not taken any steps to challenge the said entries by filing appeal, etc. under the provisions of Karnataka Land Revenue Act. He also contended that the petitioner was tenant in occupation and cultivating the entire extent of land from Fasli years 1375 to 1388 and even as on 1973-74 and onwards. These documentary evidence coupled with oral evidence of PW.1 corroborated by the oral evidence of PWs.2 and 3 and respondent -1 ought to have held that respondent No. 3 inspite of being owner of the land from the year 1965, the petitioner was cultivating the entire extent as a tenant and the Tribunal ought to have granted occupancy rights in favour of the petitioner. The learned Counsel for the petitioner relying on the judgment of the Apex Court in the case of A.L. Yellappa Vs. Smt. Huchamma alias Padmavathamma and Others, , contended that the Tribunal cannot reject the claim of the petitioner solely on the ground that the name of the petitioner was not found in Cultivator''s Column in RTCs for the relevant years as on 1.3.1974. He also contended that the Land Tribunal after having recorded a finding of fact that the petitioner is continued to be a tenant, the Tribunal ought to have granted occupancy rights in favour of the petitioner and therefore, rejection of tenancy is without any basis. Therefore, he request this Court to set aside the order of the Land Tribunal.

On the other hand, learned AGA sought to justify the impugned order and specifically contended that the petitioner has not proved his tenancy as on 1.3.1974. He contends that at one breath petitioner claims as owner of the entire property and in another breath he has stated that from time immemorial his grandfather, father and himself are tenants in respect of the property. The impugned order passed by the Land Tribunal is after issuing notice and after providing sufficient opportunity to the petitioners to produce the documents, which does not call for interference and the petition is liable to be dismissed.

I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire original records produced by learned AGA.

The admitted facts are that originally, the petitioner was owner of entire Sy. No. 127/3 measuring 4 acres 87 cents. It is not in dispute that he has sold an extent of 3 acres 75 cents in favour of one Ayyali Hanumanthappa on 7.2.1963. It is also not in dispute that said Ayyali Hanumanthappa in turn has sold said land in favour of respondent-3 on 31.5.1965. The petitioner filed Form-7 claiming occupancy rights in Sy. No. 127/3 measuring 3 acres 75 cents under respondent 3 on 23.06.1976 stating that he has been cultivating the land for the last 10 to 11 years. The petition averments in the 1st para itself discloses that the petitioner is in possession and cultivation as tenant since the time of his ancestors i.e. his grandfather and father (underlining is by me). The petitioner also relied upon RTC extracts vide Annexures A, B, C, D and E to show that he is the tenant in respect of the property in question as on 1.3.1974. But the perusal of Annexures A and B RTC extracts it is seen that they pertains to Sy. No. 9/5 which is not the subject matter of the present writ petition. RTC extracts vide Annexures C, D and E and F for the years 1388 to 1990-91 at column 12(2) in respect of Sy. No. 127/3 (which is the subject matter of the present writ petition) at Column No. 12(1) shows the name of Ayyali Hanumanthappa and column No. 9 shows the name of Kakabalu Lakshman Shetty, is mentioned and mode of cultivation is shown as "1" i.e. owner. The Tribunal considering the entire material on record in detail has recorded a finding that the petitioner has failed to prove his tenancy as on 1.3.1974.

The Tribunal while considering the reasons at page-7 of its order has recorded a finding that, for the Fazali Years 1382-1385 and 1387 (1977-78) in Column No. 12(2) name of H. Galeppa is shown as Cultivator and in Column 9 name of Kakabalu Laxmanshetty is shown as the owner. Thereafter as per the order of the Land Tribunal dated 10.12.1982 the name of H. Galeppa is shown in Column No. 9 as well as in Column 12(2) for the years 1983-84 to 1993-94. The Tribunal also recorded a finding that upto 1965 petitioner claimed as the owner and subsequently claimed as tenant. Therefore, the Tribunal has held that on considering both oral and documentary evidence produced by the petitioner does not show that he was tenant as on 1.3.1974 and even if his name is shown in the pahanies for subsequent years are not relevant to consider his tenancy. The Tribunal also recorded a finding that while filing Form-7 the petitioner has claimed that he is cultivating the land in question from last 15 to 20 years and admittedly Form-7 is filed on 23.06.1976 which will go back to 1956 to 1960 and as on that date he was owner of the land and not tenant. Since he has sold the property in question on 7.2.1963 to one Ayyali Hanumanthappa and subsequently the said Ayyali Hanumanthappa has sold the said land in favour of respondent-3 on 31.5.1965. The petitioner has not produced any documents to show that he had secured Saguvali rights from Ayyali Hanumanthappa after selling the lands to him not produced any material for payment of Gutta and therefore, he is not the tenant as on 1.3.1974.

The Tribunal also considered the decision relied upon by the learned Counsel before the Land Tribunal reported in Kar.LJ. 1978(1) page 678 to 687 and held that the petitioner has not produced any documents to show his name entered in the RTC entries as on 1.3.1974 and prior to 1.3.1974. Therefore, the Tribunal has held that the petitioner has failed prove his tenancy as on 1.3.1974 and there is no relationship of landlord and tenant between the petitioner and respondent- 3. Accordingly, the Tribunal rejected the claim of the petitioner.

It is also relevant to note at this stage that during the pendency of the earlier proceeding in W.P. No. 20432/1995, the petitioner sold the lands in question, taking advantage of the order of the Land Tribunal, granting occupancy rights in his favour, on 15.09.1997, for the second time, during the pendency of the earlier writ proceedings. It has been categorically, stated by the respondents in their statement of objections, which reads as under:

"5. It is also denied that the petitioner is in possession of the land in question and that he was paying money to Papanna Setty. In fact he has no locus standi to challenge the order of the Land Tribunal. He has suppressed the fact that he has sold the land pending consideration of the writ petition No. 20432 of 1995, before the Hon''ble High Court of Karnataka on 15-09-1997. Hon''ble High Court was pleased to pass an interim order not to alienate the land in W.P. No. 20432/1995 despite the order this petitioner sold the land to an extent of 3.24 acres to K. Sujatha, Y. Venkateshwara Rao, Subramanya Eshwara Rao and K.R. Kaviraj, petitioner has no locus standi to agitate this matter, on this ground alone the writ petition is liable to be dismissed."

It is relevant to take judicial notice in this case. Admittedly, the petitioner was the original owner of the property in question. It is also not in dispute that he has sold a portion of 3.75 cents in favour of one Ayyali Hanumantappa on 07.02.1963. He in turn sold the same to respondent No. 3 on 31.05.1965. He filed Form No. 7 on 23.06.1976 claiming occupancy rights, stating that he is in possession of the land in question as a tenant for the last 15-20 years. But, contrary to the same, in the present writ petition, the petitioner in categorical terms stated that "the petitioner is in possession and cultivation of the land as a tenant since the time of his ancestors i.e., his grand-father and father" and annexures A and B, as already stated, are produced in respect of some other Sy. Nos. and Annexures C, D and E are produced in respect of the property in question showing Hegdal Galeppa, who is nothing to do with the petitioner. This clearly indicates that the petitioner has not come to the Court with clean hands. At one breath, petitioner says he has been cultivating the land as tenant by filing Form No. 7, for the last 15-20 years and at another breath, he has stated on oath before this Court that he is in possession and cultivation as tenant since time immemorial of his ancestors i.e., grandfather and father, no material is produced to prove the same. This inconsistent claim, disentitles the petitioner for any relief before this Court. (Underlining is by me)

It is worthwhile to note that this Court while considering the provisions of Land Reforms Act, in the case of SHIVAPPA NEELAPA KALLI AND ANOTHER v. THE STATE OF KARNATAKA, BY ITS SECRETARY, DEPARTMENT OF REVENUE, BANGALORE AND OTHERS, reported In ILR 2003 KAR Short Note No. 8, held that the true owner of the land cannot claim occupancy rights for his own land and the Tribunal cannot grant the same. Admittedly, the petitioner has sold the land in question, twice; firstly, on 07.02.1963 for a valuable consideration and secondly, on 15.09.1997 in favour of respondent Nos. 4 to 6 for valuable consideration. He has received double consideration/market value for the same land. This depicts the conduct of the petitioner. At one breath, he says he was the owner and at another breath he says that he is a tenant. Therefore, considering the entire material on record, the Tribunal recorded a finding of fact that the petitioner has failed to prove his tenancy as on 01.03.1974. The same is in accordance with law and the petitioner is not entitled for any reliefs before this Court under Articles 226 and 227 of Constitution of India.

Hence, the writ petition is dismissed.