Kullaiah and Others vs State of Karnataka and Others

Anand Byrareddy, J.—1. Heard the learned counsel for the petitioners and the learned counsel for the respondents.

The petitioners are said to be persons belonging to Athikuppe village, Hunsur Taluk and are before this court, claiming that they seek to protect the land endowed to Someshwara Devaru temple and that they have no individual interest in the matter and that they are filing this petition only to protect the temple and its properties on behalf of the villagers of Athiguppe.

The land in question bearing survey No. 15 of Athiguppe village, measuring 11 acre 27 guntas was endowed in favour of the Someshwara Devaru temple.

It is claimed that the origin of the said endowment not being readily traceable, but the land bears a single survey number. It is the assertion of the learned Counsel for the petitioners that according to his information, several villagers gifted their respective holdings and it was consolidated and assigned one number in being endowed to the temple. There are however no records pertaining to such endowment. The villagers maintained the temple and had engaged the services of late Basavanna Devaru @ Basavannaiah, son of Siddalingadevaru of Athiguppe village to perform the duties of the archak at the temple. It is therefore alleged that it is a private temple and not a muzarai institution and there was no administration or maintenance by the muzarai authorities. The villagers would cultivate the land and the proceeds were utilized in the maintenance of the temple.

The third respondent, namely, the deceased archak is represented by his legal representatives, namely, his three sons. It was the claim of the deceased respondent No. 3 that he had approached the Land Tribunal, Hunsur District, seeking occupancy rights on the ground that he was the tenant of the land in question and by order dated 5.3.1992, occupancy rights were granted in favour of the third respondent. There was no contest to the application filed by the third respondent since the respondent was named as Someshwara Devaru Temple not represented by any individual.

It is the assertion of the petitioners that the third respondent was never a tenant and he was not an inamdar of the said temple and that he had made a false claim for occupancy rights, which were granted without any inquiry. Therefore, they had approached this court on an earlier occasion in a writ petition in WP 19578/1992 and by an order dated 4.11.1997, in the face of objections as to the maintainability and the locus standi of the petitions, this court had allowed the petition, quashing the order of the Tribunal and directing the Tribunal to hear the petitioners before deciding the claim of the third respondent. A writ appeal was filed in WA 150/1998 against the said order. However, the appeal was dismissed by a judgment dated 28.5.1999.

The Land Tribunal, on remand, had taken up the matter for inquiry and it is stated that the petitioners had appeared before the Land Tribunal and contested the claim of the third respondent, highlighting the fact that he was neither a tenant nor inamdar of the land in question and therefore his claim should be rejected. The petitioners had even tendered evidence by way of an affidavit and had offered themselves for cross-examination and they were duly cross-examined. According to the learned counsel for the petitioners, inspite of respondent No. 3 not having established his claim, either as a tenant, or as an inamdar, the Land Tribunal had proceeded to pass an order dated 18.12.2006, granting occupancy rights in his favour. It was observed in the course of the order that the petitioners had not offered themselves for cross-examination. The petitioners also alleged that there are serious irregularities in the sequence of events leading to the passing of the order. In that, the order is dated 18.12.2006. The same, according to the petitioners, could not have been prepared and pronounced on the said date. Since when the matter came up for hearing on 18.12.2006, the petitioners were present and the matter stood adjourned to 20.1.2007, for orders and without notice to the petitioners and without their knowledge on 5.1.2007, the case had been taken up again and it transpires, the opinion of the members of the Tribunal was sought for and on 20.1.2007 as per the order sheet of the Land Tribunal the order has been pronounced. However, the order of the Tribunal yet again intimated as 18.12.2006, which is inexplicable and therefore it is contended that the irregularity would indicate mischief on the part of the respondent No. 3. This mischief is also apparent from the fact that when the petitioners had repeatedly sought for copies of the applications said to have been filed by the petitioners in Form No. 7 and other documents, the deposition of the witnesses who had been cross-examined was furnished and copies of the examination-in-chief were refused and the application in Form No. 7 was also not furnished. They were orally informed that there was no Form No. 7, though the order of the Tribunal would categorically refer to Form No. 7. However, the only application that had been filed by respondent No. 3 was one under the Karnataka Religious and Charitable Inams Abolition Act, 1955 (Hereinafter referred to as the ''1955 Act'', for brevity) dated 28.5.1991 and though the petitioners had requested for an endorsement to the effect that there is no Form No. 7, the Tribunal has refused to issue any such endorsement.

However, at the hearing, the learned counsel for the petitioners produces an endorsement dated 12.8.2010 to state that there was no such Form No. 7 filed by the third respondent. The petitioners have also produced a copy of the index of lands in respect of the land and also the record of rights to indicate that the land was endowed to temple and therefore would contend that respondent No. 3 could not have been conferred occupancy rights.

Elaborating further, the learned counsel for the petitioners would point out firstly that the third respondent could not claim as a tenant, as he was admittedly, an archak of the temple and taking advantage of his position as the archak, he had merely claimed tenancy, without the temple being represented by any Managing Committee or other individual. Secondly, it is pointed out that the petitioners had not filed any Form No. 7 seeking occupancy rights under the Karnataka Land Reforms Act, 1961 (Hereinafter referred to as the ''KLR Act'', for brevity) and the only application which is available on record is the one filed on 28.5.1991 and admittedly, under the 1955 Act. Therefore, irrespective of whether respondent No. 3 was claiming grant of occupancy rights under the KLR Act or whether was claiming as inamdar under the 1955 Act, the application filed by him was hopelessly barred by time and could not have been entertained. Thirdly, if it was under the provisions of the 1955 Act, the Tribunal was not vested with the jurisdiction to adjudicate on the application and hence the grant of occupancy rights in favour of the third respondent was without jurisdiction and void. The Tribunal''s reasoning that the petitioners had not established their case as to the petitioners not having proved their tenancy was on the premise that they had examined themselves as witnesses, but not offered themselves for cross-examination. This, the learned Counsel would seek to contend, is wholly erroneous and contrary to the material on record. For there are certified copies of the cross-examination of the several witnesses, who had examined themselves. Therefore, the Tribunal proceeding merely on the basis of the RTC indicating the name of the third respondent for the year 1973-74 and particularly, with reference to the appointed date, namely, 1.3.1974, could not by itself establish the tenancy in the absence of any person being named as the landlord, except the deity itself and in any event, the application ought to have been rejected as being nebulous and not maintainable, namely, if it was to be treated as one under the KLR Act it was barred by time and it was to be treated as under the 1955 Act, it was without jurisdiction and also was time barred.

The learned Counsel would also refer to the decision which has been cited by the Tribunal in the course of its order namely, J.V. Karkal v. State of Karnataka, ILR 1994 Kar. 911. Though the said decision is sought to be cited in support of the third respondent''s case, the learned counsel for the petitioners would point out that it actually defeats the case of the third respondent, wherein the claimant therein was a pastor in a Protestant Church, as opposed to the present deceased respondent No. 3 being an archak in a Shiva temple. The said pastor had sought to lay claim to the land which had been endowed to the Church as if it was his and the court having found that the priest could not be treated as a tenant or a deemed tenant, would defeat the case of respondent No. 3 himself and it is inexplicable that the Tribunal had chosen to cite the said decision in support of the third respondent''s case. Therefore, he would claim that the petition be allowed and the impugned order be quashed.

The learned Counsel for respondent No. 3, on the other hand, would vehemently oppose the petition and would take serious exception to the several allegations made of fowl play and mischief and what is also termed as ''fraudulent'' and would challenge the counsel for the petitioners to demonstrate that there is any such mischief.

The learned counsel for respondent No. 3 would point out that insofar as the primary contention that the third respondent had never filed Form No. 7 is belied by the fact that the Tribunal has repeatedly drawn reference to Form No. 7. The fact that the record now obtained by the learned Government Pleader does not contain Form No. 7 by itself would not raise a presumption that no such Form No. 7 was filed by the third respondent. It would be unfair to proceed on the footing that there was no such application filed without further verification, which this court in its writ jurisdiction, would not be in a position to do and it would have to be relegated to the Tribunal for a fresh consideration as to whether there was other material available, such as Registers maintained in respect of the applications filed in Form No. 7 to ascertain that at the relevant point of time, the third respondent had indeed filed such Form No. 7. The matter having seen two rounds before the Land Tribunal and on both occasions, respondent No. 3''s claim having been accepted would have to be given credence and therefore, if there was no such application in Form No. 7, it would not be possible for the Tribunal to have accepted the case of the third respondent twice over and it is hence contended that it would be travesty of justice to summarily declare that there was no Form No. 7 filed by the third respondent.

It is nextly contended that from a verification of the record, which this court had permitted, the fact that the witnesses fielded by the petitioners had not been offered for cross-examination is apparent. All the five witnesses, who were examined, were not offered for cross-examination and therefore, the Tribunal having proceeded to hold that there was no substance in the objections raised, as the witnesses produced by the petitioners had not been offered for cross-examination would lend credence to the finding of the Tribunal that the third respondent had established his case for grant of occupancy rights.

Notwithstanding that Form No. 7 may not be available on record, there are other incidental documents which are sufficient in law to establish the petitioners'' tenancy and cultivation of the land at the relevant point of time. Those material are significant evidence in support of the claim for occupancy rights and hence mere assertions of the petitioners that the third respondent has not established his claim for tenancy is to be rejected. It is not in dispute that the third respondent was indeed an archak at the temple and in the absence of any other Managing Committee or other body, the third respondent also having cultivated the lands of the temple cannot be dismissed as there is no prohibition against such cultivation by the third respondent. It is in that back ground that he had filed an application seeking grant of occupancy rights and the same cannot be dismissed or negated.

On the other hand, the claim of the petitioners that they are only interested in protecting the lands of the temple and that they have no individual interest is belied by the fact that the petitioners had staked their claim of having cultivated the land in question and therefore, were keenly interested in retaining the lands for themselves and therefore, were opposing the claim of the third respondent.

The learned Government Pleader would affirm that there is no Form No. 7 forthcoming from the record. The only application that is available is one filed on 28.5.1991 and the preamble to that application indicates that it is one filed under the 1955 Act and she would also concede that such application would not lie before the Tribunal and the Tribunal would have no jurisdiction to consider the said application, but would confirm that there are RTC extracts of the year 1973-74 and earlier orders reflecting Basavanna Devaru @ Basavannaiah, who is none other than the third respondent, as being in cultivation of the land.

In the above facts and circumstances, the claim of the third respondent to occupancy rights under the KLR Act is not on the basis of any Form No. 7 available on record. The only application available on record is the application filed as on 28.5.1991 under the 1955 Act. In the statement of objections, the third respondent would also declare that the land in question is devadaya inam land. The Land Tribunal''s order in its preamble also has reference to the application filed under the 1955 Act and it is seen from the body of the order that there is ambiguous reference to Form No. 7 and Form No. 7(4). In the ultimate analysis, though the learned counsel for respondent No. 3 would vehemently contend that it would be a travesty of justice to proceed on the assumption that Form No. 7 is not available on record, it would have to be kept in view that it is significant circumstance that there is no application available, except an application under the 1955 Act. The Tribunal having proceeded as if it was an application in Form No. 7 under the KLR Act and having granted occupancy rights under that Act, followed by Form No. 10 issued in favour of respondent No. 3, would indicate that there has been a mix-up in consideration of the petitioners'' claim. The finding of the Tribunal that the witnesses tendered by the petitioners had not been offered for cross-examination and therefore, adverse inference requires to be drawn against them, is also not true to the record, as rightly pointed out by the learned counsel for the petitioners, the said witnesses have all been cross-examined and in fact, the copies of the text of their cross-examination is filed along with the petition. Insofar as the contention of the petitioners that there is mischief afoot in the sequence of events as to the chairman of the Tribunal having passed an order without pronouncing the same as on 18.12.2006 and thereafter, the matter having been adjourned to 20.1.2007 and the same having been postponed to 5.1.2007 and the opinion of other members having been obtained and the order ultimately having been pronounced on 20.1.2007, though the certified copy of the order itself bears the date 18.12.2006, would not indicate any mischief.

It is next explained by the learned counsel for respondent No. 3 that since the matter was reserved for orders on 20.1.2007, and the chairman having sought the opinion of the other members on 5.1.2007 and the opinion having been furnished and thereafter having been pronounced on 20.1.2007, cannot be characterized as fraudulent or anti-dated. This explanation would have to be accepted for the reason that it does not provide any mileage to the third respondent even if it was so anti-dated. The order, in any event, would have to be set at naught on merits, as the application in Form No. 7 is not forthcoming from the record and the only application that was filed was with reference to the 1955 Act, which is not only belated, but also without jurisdiction of the Tribunal and could not have been entertained by the Tribunal. Therefore, the Tribunal erroneously having proceeded on the ground that it was the application in Form No. 7 filed under the KLR Act, was wholly without jurisdiction and erroneous and cannot be sustained.

Consequently, the petition is allowed. The impugned order is quashed.

Insofar as the land is question is concerned, since it is endowed to a religious institution, the petitioners will not have any claim over the same and cannot take advantage of the present order. The State Government would have to take measures to safeguard the land and the temple.