J.V. Gangadharachar and Others vs The Government of Karnataka, Department of Land Reforms/Revenue and Others

Anand Byrareddy, J.—1. Heard the learned Counsel for the petitioner and the learned Government Pleader.

The facts are that the land bearing survey No. 33/7 measuring 37 guntas of Jaraganahllli, Uttarahalli Hobli, Bangalore South Taluk was claimed to be subjected to tenancy by the father of respondents No. 4 to 6 and that the father of respondents No. 4 to 6 filed form No. 7 seeking occupancy rights under the provisions of the Karnataka Land Reforms Act, 1961.

Soon after such registration, the second respondent is said to have issued notice to the petitioner as well as the respondents. It is the case of the petitioner that the address of the petitioner''s father was incorrectly shown and the notice was never served on the petitioner''s father. However, there was an order passed on 31.3.1979 granting occupancy rights in favour of the father of respondents No. 4 to 6.

It is stated that the petitioner had acquired the land in question under a registered partition deed of the year 1970-71 and he was the absolute owner of the entire extent much prior to the filing of Form No. 7 by the father of respondents No. 4 to 6. Since the respondents had claimed tenancy rights over the land, the petitioner could not get the revenue records mutated in his name, but however, he had been cultivating the land after he received it as a share under the partition deed.

It is the petitioner''s case that he has never created lany case in favour of either the father of respondents No. 4 to 6 or the respondents. It is asserted that the tenancy claim is false and misleading. There is no lease deed or any other document which is placed on record to establish any such relationship of landlord and tenant. In any event, there is no claim that there is relationship of landlord and tenant as between the petitioner and respondents No. 4 to 6 or their father. The petitioner having learnt of grant of occupancy rights, had preferred a writ petition in WP 4221/1988. The petition was allowed and the matter was remanded for a fresh disposal by order dated 13.7.1993. On remand, the matter was being adjourned from time to time. In the meanwhile, persons who claim to be in possession, started constructing houses in the land in question and sought to implead themselves as parties to the proceedings. Though the application was dismissed by the Land Tribunal, it is on record that the land was losing its agricultural character. However, without notice of the several adjournments, the petitioner learnt that the Tribunal passed an order granting occupancy rights in favour of respondents No. 4 to 6. In the meanwhile, the said respondents had conveyed portions of land taking advantage of the grant of occupancy rights to various third-parties even during the pendency of the proceedings. Insofar as the order passed by the Tribunal is concerned, it was never conveyed to the petitioner and it is only in retrospect that he had learnt of the same.

The learned Counsel for the petitioner would contend that the Tribunal has proceeded to refer to the RTC extracts which are stated to contain the name of the father of respondents No. 4 to 6 one Munithimmaiah being in cultivation of the land in question and there was no material evidence placed before the Tribunal to indicate the relationship of the said Munithimmaiah with respondents No. 4 to 6. Therefore, mere indication of one Munithimmaiah being in cultivation of the land by itself did not establish the relationship of tenancy either between the father of the petitioner and the father of respondents 4 to 5 or between the petitioner and the father of respondents No. 4 to 6 or respondents themselves. The Tribunal having proceeded to grant occupancy rights merely on the basis that one Munithimmaiah @ Obaiah was cultivating the land, could not have conferred occupancy rights. There is no indication of relationship between the said Munithimmaiah and respondents Nos. 4 to 6.

Reliance is placed on a decision of this court in Shri P. Manjunath Shenoy vs. Smt. Vishalakshi Pai, ILR 1996 Kar. 2340, wherein while discussing the necessary ingredients to be established in proceedings for grant of occupancy rights, this court after discussing the case law has held thus:

"Therefore, in order to show that a person is entitled to the occupancy rights in a land he must prove that the land is used for agricultural purpose and that there is relationship of landlord and tenant between him and the owner of the land. In other words, if the land in an agricultural land, and even if a person is in possession of the same, but if he has failed to prove that there is a relationship of landlord and tenant between him and the owner of the land, by virtue of either oral agreement or written agreement, such a person cannot be a tenant notwithstanding the fact that he might be in possession of the land and cultivating the same."

Hence, the learned counsel would submit that the necessary ingredient was never present and was never established from the material on record and mere reference to RTC extracts could not have enabled the Tribunal to confer occupancy rights on the respondents. It is this which is the primary contention of the petitioner.

Further, the land had lost its agricultural character, as the respondents had proceeded surreptitiously in allotting portions of land in favour of third-parties, who in turn, had approached the Tribunal itself seeking protection their possession. Though those applications were rejected, there was material on record to indicate that the land had lost its agricultural character, in which event, the grant of occupancy rights in favour of respondents No. 4 to 6 in the face of such circumstance, was clearly illegal and without jurisdiction.

It is pointed out that in Form No. 10, issued as a result of grant of occupancy rights, requires two conditions to be met, namely, firstly, that the tenant continues to cultivate the land and if there is no cultivation consecutively for three years, the tenant is liable to be evicted from the land. Secondly, the tenant shall not alienate the land within a period of 15 years from the date of grant of occupancy rights. The fact that it was so alienated in favour of the third-parties, who had also claimed to have put up construction in portions of land, would disentitle the respondents from claiming continued occupation of the land. Therefore, the Tribunal was clearly proceeding without reference to the glaring material on record indicating that the witness for the respondents had clearly admitted that the land was not being cultivated for over seven years and other evidence available on record to indicate that portions of land had been alienated in favour of third-parties rendering the proceedings infirm and the occupancy rights could not have been conferred on the respondents. The learned counsel, therefore, seeks that the order of the Tribunal be set at naught.

While the learned Government Advocate would seek to justify the order of the Tribunal. It is not denied that the name of respondents No. 4 to 6 is not disclosed in the RTC extract. Though the name of Munithimmaiah @ Obaiah is found, there is no other material on record to establish that Munithimmiah @ Obaiah was indeed the father of respondents No. 4 to 6. In the absence of evidence to demonstrate that Munithimmaiah @ Obaiah was the father of respondents No. 4 to 6, it cannot be said that the relationship of landlord and tenant was established and the Tribunal was certainly not justified in conferring occupancy rights on respondents No. 4 to 6.

Respondents 4 to 6 are represented by Counsel who has remained absent. Statement of objections are filed which are routine statement of objections to merely deny the petition averments, without any further material being produced to substantiate the case of the respondents.

As rightly pointed out by the learned Counsel for the petitioner, the significant circumstance to be established before the Tribunal was that there was relationship of landlord and tenant and that the land was agricultural land under cultivation by the claimant. This ingredient cannot be said to have been firmly established in the face of nebulous material that is available on record.

Consequently, the petition is allowed. The grant of occupancy rights in favour of respondents No. 4 to 6 is quashed.