Krishnappa vs State of Karnataka and Others

The petitioner who is an applicant before the 3rd respondent-Tribunal, is aggrieved of the order passed by the erstwhile Land Reforms Appellate Authority, Shimoga District, Shimoga in L.R.A No. 16 of 1988, dated 17-10-1988, has filed this revision petition urging various legal contentions.

The necessary brief facts for the purpose of appreciating and considering the rival contentions urged by the learned Counsel for the parties in this revision petition are stated as hereunder.

The petitioner filed an application under Section 48-A of the Karnataka Land Reforms Act, 1961 (in short, ''KLRF Act'') in Form 7 claiming occupancy rights to an extent of 7 acres 9 guntas in Sy. No. 3 of Bommanahalli Village, Bhadravathi Taluk. The claim of the petitioner was that his father late Narasimhaiah Maistry had taken the land in question on lease from Patel Veerappa who is the husband of the 2nd respondent-Parvathamma, about 25 years prior to 1-3-1974 and after his death, the petitioner had continued cultivation of the land in question as a tenant. The further contention of the petitioner is that the landlord Patel Veerappa had filed an application under Section 14 of the KLRF Act on 9-12-1966 in L.R. Mis. No. 81 of 1970, before the then Land Tribunal namely the Munsiff Court, Bhadravathi seeking for resumption of the land in question. The said proceedings were dismissed for non-prosecution by the Munsiff Court, Bhadravathi.

The 3rd respondent-Tribunal, after conducting an enquiry granted occupancy rights in favour of the petitioner and his brothers vide its order dated 15-12-1975. The 2nd respondent being the legal heir of the landlord filed writ petition before this Court in W.P. No. 12762 of 1978. The order of the Tribunal was quashed by this Court in the writ petition on the technical grounds. The matter was remitted back to the Tribunal for reconsideration of the claim and counter-claim of the parties. It is the further case of the petitioner that during the pendency of the proceedings before the Tribunal, late Patel Veerappa and his son Basavarajappa tried to dispossess the petitioner from the land in question by tampering R.T.C. records for the years 1970-71 in connivance with the Village Accountant. In that regard, O.S. No. 81 of 1975 was filed by the petitioner against the landlord and his son. In the said suit temporary injunction was granted in favour of the petitioner against late Patel Veerappa and his son. Then an appeal was preferred by Patel Veerappa in M.A. No. 55 of 1975, against the grant of temporary injunction before the Civil Judge, Bhadravathi, which appeal came to be dismissed on merits. Thereafter, the Munsiff Court, Bhadravathi had granted permanent injunction by passing judgment and decree dated 15-12-1978 in favour of the petitioner against the defendants/respondents in the said original suit. The Land Tribunal took up the case for fresh consideration as directed by this Court in the writ petition, referred to above, the petitioner had examined two witnesses, along with himself and the 2nd respondent examined one witness along with herself. The Chairman of the Land Tribunal and the members of the Tribunal passed a dissenting order. The Chairman of the Tribunal has held that the land in question is a tenanted land and the members of the Tribunal held that it is not a tenanted land. In view of the majority members decision of the Tribunal, the Tribunal has rejected the claim of the petitioner by the Land Tribunal, Aggrieved of the rejection of the application filed by the petitioner/applicant, an appeal was filed by him before the Appellate Authority. The erstwhile Appellate Authority, after taking into consideration of all the rival contentions of the parties at paragraph 4, of the impugned order 3 points were formulated for its determination. One of the points for determination formulated by it was whether the applicant had established that he has been a tenant of the suit land as on 1-3-1974 and immediately prior to it as claimed by him. The 2nd point for the consideration of the Appellate Authority was whether the order passed by the Land Tribunal is erroneous and suffers from any infirmities, which called for interference by the Appellate Authority.

The Appellate Authority, after considering the rival contentions of the parties and evidence on record elaborately, it has answered the points by assigning its reasons at paragraphs 5 and 8 in the impugned order, confirming the order passed by the Land Tribunal, by dismissing the appeal filed by the petitioner. The learned Counsel appearing on behalf of the petitioner Mr. R.V. Jayaprakash had challenged both the impugned orders in this revision petition, contending, that the same are in contravention of the provisions of the KLRF Act and the law laid down by the Apex Court and this Court. It is further contended by him that both the Tribunal and the Appellate Authority have failed to take into consideration of the material, substantive and positive evidence on record in support of the claim of the applicant/petitioner to show that he is a tenant in respect of the land in question and further the Civil Court on the basis of the material evidence produced by the parties before it recorded its finding holding that he was in possession as a tenant on the relevant appointed date 1-3-1974. Therefore the findings recorded by both the Land Tribunal and the Appellate Authority are erroneous in law, as they failed to appreciate and consider the material and positive evidence on record in favour of the petitioner. Therefore he would submits that the impugned orders are not legal and valid, and therefore he has prayed for setting aside the orders by allowing this revision petition.

Further, the learned Counsel for the petitioner has strenuously contended that both the authorities have failed to take into consideration all the relevant material facts namely that the late landlord Patel Veerappa, the husband of the 2nd respondent filed an application under Section 14 of the KLRF Act before the Munsiff Court seeking for resumption of the land from the petitioner''s father which proceedings were dismissed, for non-prosecution. This important relevant fact would go to show that the petitioner has been in possession as a tenant on the relevant date and further neither the 2nd respondent nor her husband have produced any material evidence to show that they had taken the possession of the tenanted land from the petitioner, after the application for resumption filed by late Patel Veerappa was dismissed by the Munsiff Court. Therefore, the burden of proof was heavily on the 2nd respondent, to show that the possession of the tenanted land which was given in favour of the petitioner''s father was taken from him by following the procedure contemplated under the provisions of the Karnataka Land Reforms Act, 1961. Further, the learned Counsel appearing on behalf of the petitioner, elaborating his submission, he has placed reliance upon Section 25 of the Act, wherein the old Section 25 has been substituted by new section by Act 1 of 1974 wherein the surrender of land by tenant is prohibited except in the case of a soldier or an Army man and further the second respondent has not produced material to show that the possession of the land from the petitioner was taken by her by following due process of law under the provisions of the KLRF Act. In this view of the matter, he would contends that the aforesaid relevant and important aspect of the case has not been taken into consideration by both the authorities, thereby they have committed an error in law in perusing the order rejecting the claim of tenancy rights, upon the land in question. Therefore, the impugned orders are liable to be set aside and grant the claim of the petitioner. Therefore, the learned Counsel for the petitioner submits that the contention of the second respondent that there was a voluntary surrender of land by the petitioner is not as contemplated under the provisions of the Act, for which he had placed reliance upon the judgment of the Apex Court in Ramachandra Keshav Adke (dead) by L.Rs v Govind Joti Chavare and Others, AIR 1975 SC 915. Therefore, both the authorities have proceeded to examine and consider the claim of the second respondent on the premises that there was a voluntary surrender of the land by the applicant in favour of the 2nd respondent, which finding of both the authorities suffers from error in law and the same is contrary to the law laid down by the Apex Court and the provisions of the KLRF Act. Therefore, the impugned orders are liable to be set aside. This Court has to answer the legal question that is raised in this petition is as to whether the petitioner has been in possession as a tenant of the land in question prior to 1-3-1974 and non-consideration of judgment and decree of the Civil Court passed prior to the said date granting permanent injunction decree in favour of the petitioner in respect of the land in dispute in the original suit is legal and valid, in view of the observations made by this Court in the case of Bhagirathi Amma v Land Tribunal, Udupi, 1979(1) Kar. L.J. 307 (DB), wherein the Division Bench of this Court has held that though the judgment and decree passed by the Civil Court is not binding on the Tribunal, still it has to take the same into consideration at the time of determining tenancy rights of the parties. Both the authorities have not considered the material, positive and substantive evidence on record with regard to the finding that the petitioner was in possession of the land in question as a tenant immediately prior or as on the appointed date 1-3-1974. Therefore, the learned Counsel for the petitioner submits that the findings of the impugned order are erroneous in law, and therefore the same are liable to be set aside.

The learned Counsel for the petitioner has also placed reliance on the judgment of the Apex Court in State of Karnataka v Uppegouda and Others, (1997)3 SCC 593, wherein the Apex Court has considered Section 44 of the KLRF Act with regard to the abolition of intermediary rights of the land holders, the respondent-land holder asserting that the tenant had surrendered the land and entries in revenue records were received in support thereof and there was no order of Competent Authority of eviction of tenant for contravention of any statutory provision, surrender must be proved strictly and therefore there is no proof of eviction of the tenant in the instant case as held by the Apex Court in the above referred case. In this view of the matter and the law laid down by the Apex Court in the above said case with all fours applicable to the facts of this case and further the learned Counsel for the petitioner has placed reliance on the judgment of the Apex Court in case of Y.R. Veeranna v State of Karnataka and Others, AIR 1997 SC 2697, for the proposition that application in Form 7 filed by the petitioner/karta of the joint family on his behalf and other members of the joint family for recognition of his occupancy rights as tenant in respect of the joint family land, which was obtained at a partition between the petitioner and his brother therefore the learned Counsel for the petitioner would submits that the law laid down in that case by the Apex Court with all fours applicable to the facts of this case for the reason that the possession of the land and the land was leased in favour of the father of the petitioner, merely because the other legal heirs of the original tenant have not filed application, claiming occupancy rights, the claim of the petitioner cannot be rejected on this ground.

In the light of the legal contentions urged by the learned Counsel on behalf of the parties this Court has proceeded to examine to find out whether the impugned orders passed by the Land Tribunal and the erstwhile Appellate Authority suffers from any illegality or irregularity in conducting the proceedings. To answer the above referred question formulated by this Court it has perused both the impugned orders. No doubt the Land Tribunal has passed a lengthy order. The Chairman of the Tribunal has recorded a finding on the basis of the material evidence on record holding that the land in question is a tenanted land, on perusal of the impugned order, it is noticed that the majority of the members of the Tribunal have not taken into consideration the judgment and decree passed by the Civil Court in the Original Suit proceedings between the parties in respect of the land in question, wherein the Civil Court recorded a finding, holding that the land in question is a tenanted land. Therefore, they have not taken into consideration the material evidence on record, wherein, the Civil Court has recorded a finding of fact holding that petitioner is the tenant in respect of the land in question in view of the law declared by the Division Bench in the case of Bagirathiamma, the Land Tribunal and Appellate Authority could have taken into consideration at the time of determining the tenancy claim of the petitioner. Therefore, the non-consideration of the material evidence on record by the Land Tribunal and Appellate Authority and the findings recorded in the impugned orders have rendered erroneous in law, for this reason the impugned orders are vitiated in law and therefore the same are liable to be set aside. In the Civil Court judgment and decree passed in favour of the petitioner, there is a material evidence with regard to the lease of the land by the husband of the 2nd respondent in favour of the petitioner''s father, which fact is evidenced from the initiation of the proceedings against the petitioner''s father before the Munsiff Court by the second respondent''s husband for resumption of land in question under Section 14 of the KLRF Act. This important aspect of the matter has not been taken into consideration by both the Land Tribunal and the Appellate Authority. The contention of the second respondent''s Counsel that there is a valid voluntary surrender of the land is not recognised under the provisions of the KLRF Act and this contention is not substantiated by the Landlord with reference to the evidence on record as the second respondent has not placed such evidence before the Tribunal and Appellate Authority. On the other hand, the voluntary surrender of land is not permissible in law in view of the law laid down by the Apex Court in Ramachandra Keshav Adke''s, case upon which the petitioner''s Counsel has rightly placed reliance. The majority of members of the Land Tribunal have placed strong reliance upon the entries in the name of the husband of the second respondent in respect of the land in question, they could not have placed reliance upon the RTC entries in view of the admitted fact that the land in question was leased in favour of the petitioner''s father and the 2nd respondent''s husband filed an application under Section 14 on 9-12-1966 before the jurisdictional Munsiffs Court after the KLRF Act, came into force with effect from 2-10-1965. This material documentary evidence could have been considered by the Land Tribunal for determination of the tenancy right of the petitioner, to examine as to whether the claim of the petitioner was justified in respect of the land in question. The entries made by the revenue officials in the RTC Records in respect of the land in question in favour of the second respondent''s husband could not have been relied upon by the Land Tribunal for the reason that neither the husband of the 2nd respondent nor the 2nd respondent has produced any material before the revenue officers to show that the land in question was surrendered by the petitioner''s father for entering the name of the 2nd respondent''s husband in the RTC records. This important aspect of the matter has not been taken into consideration. Therefore, the reliance placed upon the entries in the RTC records in respect of the lands in question is an erroneous finding for the reason that entries in the RTC records in respect of the land in question in favour of the husband of the second respondent are not lawful entries and the same is not based on evidence on record. The Tribunal was required to have examined the RTC record with reference to the entries under column 12(2) in respect of the land in question.

The Land Tribunal further has placed reliance upon the oral evidence of the witnesses who were examined and without proper appreciation of the same has recorded its findings against the petitioner. The majority memhers of the Land Tribunal have not considered the same and not given valid and cogent reasons in support of the findings in the impugned order passed by them. The oral evidence adduced by the petitioner, as could be noticed from the findings recorded by the Tribunal, is a corroborative piece of evidence in support of claim of tenancy in addition to the judgment and decree passed by the Civil Court between the parties, which is in favour of the petitioner and further resumption of the land proceedings initiated by the husband of the 2nd respondent is also not considered by both the authorities. The majority of the members of the Tribunal have come to the wrong conclusions based on the irrelevant fact and non-consideration of the material evidence in favour of the petitioner by the Land Tribunal and has recorded its finding in favour of the 2nd respondent when there is no material evidence on record in her favour. These important aspects of the case of the petitioner were brought to the notice of the Appellate Authority, but it has not examined and considered the case of the petitioner with reference to the documents placed on record and in view of the law laid down by this Court with regard to the consideration of the Civil Court judgment and decree and it has accepted the findings given by the majority members of the Tribunal in the impugned order without applying their mind independently after considering the evidence on record while recording their findings and reasons, therefore this Court has to hold that the Appellate Authority has not examined the case of the petitioner in the perspective manner, hence the impugned order passed by it has vitiated in law. The Appellate Authority in my view, has failed in discharging its statutory duty in exercise of its Appellate power. The reasons assigned by the Appellate Authority at Paragraph 7 of the impugned order with reference to the documentary evidence vide Exhibits B. 4 and B. 5 in which Ex. B. 4 is the manure identity card and B. 5, B. 6, B. 7, B. 8 and B. 9 are the land assessment receipts. It has wrongly placed reliance on the entries in the name of the husband of the 2nd respondent in the RTC records, as those entries are not lawful entries and those entries are rebutted by the petitioner by placing evidence to show that his father has been cultivating in possession of the land as a tenant. Further at paragraph 7 of the impugned order the Appellate Authority has failed to take into consideration the name of Narasimha Maistry, the father of the petitioner, was entered in the pahani extracts in respect of the land in question, since 1959-60 till 1970. The change of entry and the mutation entries in the RTC records in respect of the land in question by the Revenue Authorities subsequent to that period without following the procedure as contemplated under the Karnataka Land Revenue Act, 1964. The entries are unlawful and therefore the Appellate Authority should not have relied upon the entries. It is alleged that the name of Basavarajappa has been entered in the RTC record from 1970-71 till 1973-74 in collusion with the Village Accountant. These pahanis have not been examined by the Tribunal with reference to Rule 19(6) of the Karnataka Land Reforms Rules, 1974 and further the Appellate Authority placed reliance on the order passed by this Court in C.R.P. No. 2304 of 1988 to the proceedings arisen in the interlocutory application filed under Section 48-C of the KLRF Act, before the Land Tribunal, wherein it had refused to grant an order of temporary injunction in favour of the petitioner without considering the finding recorded, in the judgment and decree and passed by the Civil Court in favour of the petitioner.

The approach of the Appellate Authority in placing reliance on the order passed by this Court and the observation made in the Revision Petition referred to above holding that the petitioner has not made out a prima facie case for grant of temporary injunction against the second respondent is only a interim order, which observation should not have been considered by the Appellate Authority at the time of determining the claim of the petitioner on merits. Therefore, this Court has to record a finding that the Appellate Authority has not applied its mind and has not taken into consideration the overall evidence on record, to determine the claim of the applicant at the time when it has recorded its findings. The Appellate Authority has wrongly recorded its finding with reference to the Civil Court''s judgment and decree contrary to the law laid down by the Division Bench of this Court referred to above and it has held that in view of Sections 132 and 133 of the Land Reforms Act, the Civil Court has no jurisdiction to recording a finding in respect of the land in question in favour of the petitioner that he is in possession of the property, which reasoning is also not tenable in law as it has placed reliance upon the judgment of this Court in Vilas alias Gundu Ananthacharya v State of Karnataka, 1987(2) Kar. L.J. Sh. N. 240, wherein the Appellate Authority has recorded a finding that the petitioner claiming occupancy rights in respect of the land in question under the provisions of the KLRF Act, should show that he has been in possession and cultivation of the land on the relevant material date immediately prior to and as on 1-3-1974. The said finding recorded by the Appellate Authority holding that the applicant was not in possession of the suit land as on 1-3-1974 and immediately prior to that date as a tenant, by affirming the finding of the Land Tribunal holding that the rejection of the application is perfectly justifiable and he cannot be granted occupancy right is not tenable in law. Therefore, this Court has to record a finding holding that the findings of the Appellate Authority are erroneous in law, as it has failed to consider the legal evidence on record which is referred to in this paragraph and at paragraph 8, of the impugned order, no doubt it has made an effort to take into consideration the certified copy of the L.R. Misc. 81 of 1970 produced by the petitioner as Ex. A. 1 which is an undisputed document, where the 2nd respondent''s husband had filed an application against the petitioners father under Section 14 of the KLRF Act before the Appellate Authority at para 8 of the impugned order with reference to judgment and decree passed in favour of the petitioner in the original suit proceedings has not been properly taken into consideration by it. Further, the Appellate Authority has not at all considered the material evidence on record in favour of the petitioner while recording its finding.

For the reasons stated supra, the submission of the learned Counsel appearing on behalf of the petitioner placing reliance on the judgments of this Court and the Apex Court referred to supra with all fours applicable to the facts of this case, and hence they are well-founded and therefore the same must be accepted by this Court. On the other hand, the submission made on behalf of the second respondent justifying the impugned orders passed by the Land Tribunal and Appellate Authority contending that both the orders are legal and valid, as the findings are concurrent on facts are not tenable in law, hence the same cannot be accepted by this Court. The petitioner has made out, valid and tenable grounds showing that the findings recorded in the impugned orders are erroneous in law, which suffers from illegality. Therefore, the submission made on behalf of the 2nd respondent is liable to be rejected.

For the reasons stated supra, both the Land Tribunal and the Appellate Authority have committed an illegality in not taking into consideration of all the material evidence on record and recorded their erroneous findings in the impugned orders. Therefore, both the orders are liable to be set aside. Hence, I pass the following order.

Revision petition is allowed. The impugned orders are liable to be set aside and further I have to record a finding on the basis of the rival contentions urged by the parties taking into consideration that there was no valid surrender as contended by the second respondent. Therefore, the finding of the majority of the members of the Tribunal and the Appellate Authority that there was a valid surrender of land in favour of the second respondent''s husband suffers from error in law as no such valid surrender is permissible under the provisions of the Act and in view of the law declared by the Apex Court. Having regard to the fact that the Civil Court has recorded a finding that the petitioner has been in possession and cultivation of the land in question as a tenant, has to be accepted in view of the observations of the Division Bench judgment of this Court. Therefore, this Court has to record a finding that the petitioner is a tenant immediately prior to and as on 1-3-1974 and the land is a tenanted land. For the reasons stated supra, the petition must succeed. Hence I pass the following order.

This revision petition is allowed. The impugned orders passed by the Land Tribunal and the Appellate Authority are hereby set aside and the application of the applicant is allowed. The Land Tribunal is directed to register the applicant as a tenant by registering him as a tenant in respect of the land in question under Section 45 of the Land Reforms Act.