K Nagaraj Setty Since Dead by His L.Rs. Hemanth Raju, Smt. K. Nagamani and K N Puttanna Setty Since Dead by His L.Rs. Smt. K.P. Uma and Sri. K.P. Naresh vs State of Karnataka and Others

Ajit J. Gunjal

The proceedings have a checkered career. The petitioners 1 and 2 claim to be the owners of the lands in question i.e., survey No. 23/1 measuring 3 acres, 3 guntas and survey No. 33/1 which measures 2 acres 9 guntas. Respondents 3 to 5 claiming to be the tenants of the land in question make an application in form No. 7 for grant of occupancy rights. Initially the Land Tribunal grants occupancy rights in respect of lands in question. The same is questioned by the petitioners before the Appellate Authority but however after the abolition of the Appellate Authority, the petitioners have filed a civil petition which was later converted into W.P.No. 15808/1993. This Court, pursuant to the order dated 9.3.2000, set aside the order of the Land Tribunal dated 20.3.1981 and remitted the applications filed by respondents 3 to 5 to the Land Tribunal for fresh consideration. A copy of the order passed by this Court is found at Annexure ''D''. After the matter was remitted to the Land Tribunal for fresh adjudication, notices were issued to the petitioners as well as to respondents 3 to 5. Both the petitioners as well as respondents let in their evidence both oral and documentary. The Land Tribunal having regard to the material produced before it was of the view that respondents 3 to 5 were cultivating the lands in question as tenants ass an the appointed date i.e., 1.3.1974, Hence, granted occupancy rights. The same is questioned in this writ portion.

It is to be noticed that during the pendency of these writ proceedings, several applications are filed for impleading on the ground that even before the order was passed by the Land Tribunal, there was an agreement inter-as between the petitioner and one of the impleading applicant and the property was developed and it was sold. The developer as well as the purchaser have also made applications to get themselves impleaded. When the applications were listed before this Court, this Court pursuant to the order dated 27.10.2009 directed that all the impleading applications should be considered at the time of hearing.

I am of the view that all applicants are necessary and proper parties to the present proceedings. Hence, all the applications are granted.The learned Counsel appearing for petitioner to amend the cause title.

Beard Mr. K.N. Nitish, learned Counsel appearing for petitioners and Mr. G. Manivannan, learned Counsel appearing for respondents 3 to 5 and Mr. G.K.V. Murthy, learned Counsel appearing for one of the impleading applicants.

The learned Counsel appearing for petitioner vehemently submits that the Tribunal has not taken into consideration the scope of Section 45 of the Act. He further submits that the applications in Form No. 7 Itself would clearly disclose that it is a false claim in as much as the age of the applicant is 45 years whereas their claim is that they are cultivating the lands as tenants since 40 years. He further submits that the record of rights which reflects the name of the father of petitioners but that has not been taken into consideration by the Tribunal. He further submits that the scope of Section 112(b)(e) has not been taken into consideration so also the evidence on record.

Mr. Murthy, learned Counsel for one of the impleading applicants submits that way back in the year 1994, the petitioners along with another brother and the sisters had entered into an agreement to develop the property in question. On the strength of the said agreement, the property was developed and sold in favour of various persons way back in the year 1995 itself. He further submits that both the petitioners, their brother one Hemanth Raj, their two sisters have received the consideration which has been paid by bankers instruments. Hence, the petitioners have no locus to question the order passed by the Land Tribunal. He further submits that the very recital in the agreement discloses that they are not in possession and it is being cultivated by respondents 3 to 5.

Mr. G. Manivannan, learned Counsel appearing for respondents 3 to 5 submits that the evidence on record clearly discloses that they have been cultivating the lands as tenants. He further submits that one of the brother of petitioners has admitted during the course of enquiry that it is a tenanted land and they were cultivating on ''vara'' basis. He submits that the evidence on record would clearly rebut the presumption u/s 133 of the Karnataka Land Revenue Act.

I have given my anxious conaideration to the submission made by the learned Counsel appearing for petitioners as well as respondents In so far as first contention of the learned Counsel appearing for petitioners regarding the scope of Section 45 is concerned, it is to be noticed that Section 45 would speak about the tenants to be registered as occupants of lands on certain conditions, Indeed, every person, who if cultivating the land as a tenant as on the appointed date i.e., on 1.3.1974 is entitled to make an application in from No. 7 for grant of occupancy rights. Indeed, it is also to be noticed that the relevant date to determine as to whether the land is tenanted or not is on 1.3.1974. It may be that over a period of time that the agricultural land has lost its character and is more akin to be a non agricultural land. But, however, that by itself does not come in the way of the Tribunal considering the application of respondents 3 to 5 for grant of occupancy rights in as much as, as on 1.3.1974, the land in question was an agricultural land. In so far as the age factor In Form No. 7 is concerned, that is hardly of any consequence more so, having regard to the oral evidence given by the petitioner''s brother that respondents 3 to 5 were cultivating the land as a tenant.

In so far as record of rights are concerned which is produced for period between 1975 and 1977. This by itself cannot be said that respondents 3 to 5 were not cultivating the land as tenants.

Indeed, Section 133 of the Karnataka Land Revenue Act would speak about the presumption in respect of the entries in the revenue records. But however, the said presumption is rebutted by leading oral evidence. The said entries are rebutted in as much as the evidence on record would discloses that respondents 3 to 5 were cultivating the land as tenants.

As observed, the brother of petitioners has also made a statement before the Tribunal that respondents 3 to 5 were cultivating the land as a tenant. It is also to be noticed that the first petitioner was working in the Reserve Bank of India and petitioner No. 2 was also gainfully employed. Hence, in the circumstances, the question of them personally cultivating the land would not arise.

In so far as the scope of Section 1-112-B (6) and duties of the Tribunal are concerned, I am of the view that indeed the Tribunal has taken great pains to go into the question of tenancy with reference to the various decisions rendered by this Court as well as the statutory provisions of the Act itself. I am of the view that the duties, which are cast on the Tribunal have been met satisfactorily. Indeed, the order of the Tribunal is well reasoned which is a rare commodity. The Tribunal has taken into consideration the relevancy of record of rights u/s 48-A and has placed reliance on the decisions of this Court, on a Division Bench ruling of this Court reported in 1980 (1) KLJ SN 153 and so also the definition of Section 3(11) regarding the personal cultivation.

In so far as the case of the supplemental respondents are concerned, it is to be noticed that the petitioners along with their brother one Hemanth Raj as well as two sisters namely, K. Nagamani and K. Prabha have received considerable amount pursuant to the agreement. It is no doubt true that the said agreement is sought to be denied now by the petitioners, but nevertheless prima facie, I am of the view that indeed the said document was executed by the three brothers and two sisters and they have received the amount It is also to be noticed that the amount is paid by the bankers cheque. A comparison of the signatures on the vakalath as well as on the said agreement prima facie indicates that they have signed the said agreement Indeed, I am of the view that on the question of locus also, the petitioners are not entitled to question the order passed by the Land Tribunal It is also to be noticed that under Articles 226 and 227 of the Constitution of India, the scope of interference is very limited. The petitioners have not been able to point out that the Tribunal has failed to consider the material produced before it.

Having said so, I am of the view that the question of interference does sot arise. Petition stands rejected. Rule is discharged.

Mr. Shashidhar S. Karamadi, learned HCGP is permitted to file memo of appearance within four weeks from today.