Lalitha Poojarthi vs State of Karnataka

Dr. Jawad Rahim, J.—Petitioners in this joint writ action have brought in question the order of the 2nd respondent-Land Tribunal, Karkala, Udupi District, vide Annexure-A, dated 26-12-2012 rejecting their claim of tenancy pursued by the 1st petitioner-Lalitha Poojari legal heir of Narang Poojari, the applicant for grant of occupancy right. In response to notice regarding Rule, Sri Chandrakanth Ariga has represented the 3rd respondent-Rajashri Ballal who is the contesting respondent. The State is represented by learned Additional Government Advocate, Mr. Venkatesh Dodderi.

Heard learned Counsel on both sides, perused records in supplementation thereto from which the following factual matrix manifests needing reference:

"(a) One Govind Poojari laid claim of tenancy under Thangappa Amma through his application under Form 7 which the Tribunal-2nd respondent registered in No. TRA.2464/76-77 and held enquiry. During the enquiry, Govind Poojari died consequent to which a person called Narang Poojari appeared claiming to be his son. He gave statement that his father was tenant of land bearing Survey Nos. 90/1, 90/2 and 90/3, all situate in Mala Village, Karkala Taluk, South Canara, and had been paying premium/Geni.

(b) The Tribunal accepted the claim of Govind Poojari even though by then he had died, the Tribunal opined, the information furnished by Govind Poojari during his lifetime and ocular statement given by his son-Narang Poojari substantiates his claim of tenancy in respect of lands bearing Survey Nos. 90/1B, 90/2B, 90/3, 90/5 and 90/6 to an extent of 58 cents, 2 acres 26 cents, 42 cents, 70 cents and 21 cents respectively and allowed the claim vide order dated 24-3-1977 vide Annexure-G, granting occupancy in respect of lands more than his claims.

(c) It is material to note in the said proceedings, Thangappa Amma was shown as landlady who, had not contested the proceedings as she was not alive. The said order was questioned by the 3rd respondent-Rajashri Ballal in writ actions in W.P. No. 16800 of 1993 on more than one ground, but the core contention was, Thangappa Amma had no subsisting right, title and interest in the properties in question on the date of the application filed in the Form 7 as properties subject of adjudication before the Tribunal had fallen to her share under family partition effected in the year 1973. She also assertively contended, despite her name appearing in the revenue records, the Land Tribunal had committed a serious error in not notifying her of the proceedings. She also alleged, the Tribunal had indulged in a slipshod action contraversing provisions of Karnataka Land Reforms Act, 1961 and passed a truncated order granting tenancy without support from any material.

(d) This Court found favour with all the grounds urged in W.P. No. 16800 of 1993 and made Rule absolute, quashing the order passed by the Tribunal referred to above (Annexure-G). However, the case was remanded to the Tribunal for a de novo enquiry after notifying 3rd respondent who was the petitioner in the writ petitioner.

(e) During fresh proceedings in terms of the order of this Court, the Tribunal has passed the impugned order vide Annexure-A rejecting the claim of the petitioners. They have assailed it in this writ petition."

Learned designated Senior Counsel, Sri Devadas would submit, the order at Annexure-A is neither sustainable in law nor on facts; it is a result of failure by the Tribunal to examine material proof laid by the petitioners and the revenue records maintained in the normal course by the State. He would submit, the impugned order would show the Chairman of the Tribunal had, on examination of the statement given by the 1st petitioner, earlier statement given by her husband-Narang Poojari and revenue records, opined it substantiated the claim of tenancy between Govind Poojari and the landlady and upon his death, tenancy right had devolved by inheritance upon the petitioners. He submits, the Chairman had reached a logical conclusion appreciating the material in the right perspective, but the non-official members of the Tribunal on surmises and conjectures, disagreed with his opinion creating majority opinion against the tenant and in favour of the landlord resulting in rejection of the application. He would submit, when there is division in the opinion of the members of the Tribunal, and the chairman the Supreme Court has indicated how evidence has to be appreciated and how the opinion of the majority has to be tested.

He gains citational support to his contention relying on the decision of the Apex Court in the case of Ram and Another Vs. State of Karnataka and Others, , to contend, petitioners had produced records regarding payment of levy which presupposes there was cultivation of crop by Narang Poojari and in proof of it, they had produced the extract of levy payment register indicating various sub-survey numbers of tenancy. He submits, that evidence was a clincher to prove tenancy and dispelled all doubts created by the landlord setting up lack of tenancy.

He would place reliance on another decision in Panditha Murthyacharya v. Land Tribunal, Tumkur and Another 1977(1) Kar. L.J. 376, to contend, even if the tenant had produced only some of the records, the Tribunal was required to give it necessary credence in view of presumption created in favour of the entries by the provision of Section 133 of the Karnataka Land Reforms Act, 1961. In support of this proposition, he relies on the decision of Srikantegowda v. Land Reforms Tribunal, Thirthahalli and Others 1977(2) Kar. L.J. 126.

With these case laws for assistance, he would submits, the facts in it nakedness prove that Govind Poojari was the tenant of the land, but died before the Tribunal could give him opportunity. The lis was continued by his son-Narang Poojari to substantiate the tenancy of his father and continuance of tenancy by him personally. He submits, the earlier order at Annexure-J passed by the Tribunal bears testimony to the fact that Narang Poojari was cultivating the land. However, the said order was interfered with by this Court consequent to which the case was remanded for fresh enquiry by the Tribunal. He submits, earlier proof laid by Narang Poojari was on record, so also documents like Pahani, levy payment register, etc. In the remand proceedings, the Tribunal had no doubt referred to the material on record, but the appreciation of material has varied.

He submits, the Chairman has appreciated the material in the manner it is required in law, but the members of the Tribunal have, without examining its evidentiary value, discounted it to favour the respondent. He teased out the reasons assigned by the dissenting members of the Tribunal to show that they merely concentrated on the statement given by the landlord that the applicants-petitioners were residing elsewhere and therefore that prevailed in their mind to hold they were not cultivating the land. He submits, against such material, the landlord was also comfortably stationed in Mangalore, far away from the lands in question. Thus, he submits, placing in juxtaposition physical possession of the tenants and physical possession of the landlord, the presumption in law is, once land vests in the State, it goes to the tenant if he proves as on 1-7-1973 he was cultivating it as tenant. The entries preceding that year or the subsequent year is of no concern.

In negation of all these grounds urged by learned designated Senior Counsel, Mr. Chandrakanth Ariga, with vehemence contends, this is a case where petitioners indulged in laying a false claim based on manipulation of records concocted for the purpose. He submits, undisputed facts would show Govind Poojari who filed Form 7 had failed to show he was a tenant as spelled out in law to claim the benefit of occupancy right. In this regard, he would submit, Pahani for the relevant year would show the name of the landlord-3rd respondent as cultivator, and Govind Poojari''s contention that the land in question was occupied by one Krishna Naik was not advanced earlier. Therefore he submits, vinculum juris of landlord and tenant was neither pleaded nor proved between Govind Poojari and the landlord.

The second ground urged is, as in the year 1973-1974, the name of Govind Poojari was not found and no revenue record was produced by him to substantiate it. He drew my attention to documents, viz., Annexures-E1 to E3 which are described as extracts of levy payment registers to contend they are only xerox copies attested by the Tahsildar as certified copies; the very first look creates a doubt about its genuineness; mere entries on plain paper are made showing them to be extract of levy payment register. He submits, these papers could have been treated as proof of payment of levy, but it has to be seen if levy was paid, petitioners would have received receipt for such payment. Since no receipts are produced, it creates a further doubt about its genuineness.

Alternatively Mr. Ariga submits levy payment notice must precede payment and those notices are also not filed or produced by the petitioners. Therefore no credence could be given to these annexures. On the other hand, they render the claim doubtful. He would then submit, tenancy should be tenancy in law and refers to the definition of ''tenant'' as found in Section 2(A)(34) of the Karnataka Land Reforms Act means an agriculturist who cultivates personally the land he hold on lease from a landlord and includes a person who is deemed to be a tenant under Section 4. Under Explanation to Section 2(A)(34) it is made clear that a person who takes up a contract to cut grass, or to gather the fruits or other produce of any land, shall not on that account only be deemed to be a tenant.

He then refers to the provision of Section 44 of the Karnataka Land Reforms Act which indicates how and when land vests in the State. He relies on Section 112(B) of the same Act which spells out the duties of the Tribunal in conducting an enquiry in a claim relating to tenancy. My attention is specifically drawn to the requirement of holding necessary enquiry (including local inspection) and to pass orders in cases relating to registration of agricultural labourers as owners of dwelling houses and land appurtenant thereto under Section 38. He also refers to the decision of the Tribunal as to whether the applicant is a ''tenant'' or not.

He submits, a decision in limine is required as to whether the applicant is a tenant or not, and the Tribunal has done so referring to the material on record to reach a logical conclusion that tenancy claim was not proved. The majority view has rendered justice while the Chairman''s opinion could be described as not sustainable. Thus he supports the impugned order.

All contentions have received my serious consideration.

Needless to say when the claim is for tenancy, primary onus is on the person claiming tenancy. There are various modes by which tenancy could be substantiated. The benevolent provisions of the Karnataka Land Reforms Act have granted too many concessions to tenants to succeed in their claim. Mere submission of Form 7 gives the beginning and for all intent and purposes, it becomes very relevant. In the instant case, applicant-Govind Poojari has filed Form 7 in which it is material to note only three sub-survey numbers are mentioned by him, whereas in this petition and the order passed by the Tribunal (Annexure-G), more than his asking, he was granted tenancy in respect of five sub-survey numbers. That itself is indication that the claim was less but grant was more.

Be that as it may, I am inclined to accept the assertive contention of Mr. Chandrakanth Ariga that the status of a person applying had to be tested based on the material, and in this regard it would be relevant entries in the revenue records for the period 1973-1974. RTCs produced show the name of one Krishna Naik for the period 1972-1973, 1973-1974; we do not find the name of Govind Poojari; we do not fine the name of Narang Poojari who continued the proceedings before the Tribunal. We also do not find the name of any family member of Govind Poojari who are named in legal pursuit in this writ petition. Conspicuously their names are absent.

It is noticed only the name of 3rd respondent-Rajashri as Khateddar from the year 1973 is shown. Much has been commented to say when she was only a minor aged 8 years, how her name could have appeared. Needless to say Section 18 of the Karnataka Land Revenue Act, 1964 mandates whenever there is any transfer or acquisition of agricultural land by partition and if such deed is registered, the person acquiring right, title and interest is not required to apply or report such acquisition which is otherwise expected of every acquisition because the second proviso to Section 128 requires the Registering Authority to intimate the Revenue Authorities and not the parties to the deed. In this view, it could be said that there is automatic transmission of opinion by the Registering Authorities which must be acted upon by the Revenue Authorities. With clarity, the relevant section says so. It is extracted hereunder:

"Under Section 128 of the Karnataka Land Revenue Act, it is held that:

"128. (1) to (3)........

(4) No document by virtue of which any person acquires a right in any land as holder, occupant, owner, mortgagee, landlord or tenant or assignee of the rent or revenue thereunder, shall be registered under the Registration Act, 1908 (Central Act No. 12 of 1908), unless the person liable to pay the registration fee also pays to the Registering Authority such fees as may be prescribed for making the necessary entries in the record of rights and registers referred to in Section 129; and on the registration of such a document, the Registering Authority shall make a report of the acquisition of the right to the Prescribed Officer".

Therefore no surprise could be highlighted merely because in 1973 itself the name of the 3rd respondent appears even though she was a minor then.

The decision cited at the Bar to support the case of the petitioners, on closer scrutiny, would render more assistance to the 3rd respondent in this case. For instance, in the decision rendered by the Hon''ble Supreme Court in the case of Ram, dealing with a case where there was difference of opinion between the Chairman and majority, it is observed thus:

"The chairman has given detailed reasons in support for his opinion, the remaining four Members of the Tribunal held in favour of all the four applicants but have not given reasons to come to the conclusion that all of them were entitled to grant of occupancy rights in respect of their respective shares. It may be remembered that four Members of the Tribunal were non-official Members, they were not Members judicially trained. Although they have not given reasons in support of their opinion, their opinion could be supported on the basis of material on record".

Therefore it is clear if no reasons are assigned by the majority who are non-official, their majority view cannot be set aside merely on the ground they had not assigned reasons, if the decision finds support from other material. That was the case before the Apex Court and taking into consideration all attending circumstances, such proposition was laid. In the instant case, we find there is sufficient material supporting the majority view and in fact they have assigned reasons for differing with the view of the Chairman.

In the second decision, i.e., Panditha Murthyacharya''s case:

"It is not disputed that the pahani copies produced at Ext. ''B'' in this writ petition stand in the name of the petitioner immediately prior to the date of vesting and subsequently. The 2nd respondent has not only failed to produce pahanis standing in his name but also has not taken any action before the Competent Authority to delete those entries and to get his name entered therein".

It applies rightly to the facts of the case because if at all Govind Poojari was tenant, he ought to have got his name entered and after him, if Narang Poojari had continued, he should have insisted for entry of his name as required under Section 128 of the Land Revenue Act which also makes it clear that tenancy is inheritable as envisages under Rule 101 of the Karnataka Land Revenue Rules, 1966. Inaction on the part of both would render credence to the landlord''s claim.

It must further be noticed, in the remand proceedings Narang Poojari did not take part. He was found to be absconding and it is only the 1st petitioner who championed the cause of herself and others. Taking into consideration the material on record and the contentions of both sides in entirety, I am satisfied the Tribunal''s decision is based on legally acceptable material and the ultimate conclusion reached is based which requires no interference.

At this juncture, it must be brought on record that the 3rd respondent had moved an application before this Court under Order 39, Rules 1 and 2 of Civil Procedure Code, 1908 seeking injunction against the petitioners form interfering with her possession or the land in question and had produced certain photographs showing they are hurriedly putting up a structure to claim possessory right. The application has been seriously opposed by the petitioners contending what is shown in the photographs is merely latrine while the main structure is existing for several years. But we have noticed that construction has just begun and even curing process is not completed. All these factors indicate there is an attempt by the petitioners to go over the land.

Hearing of the application was postponed to consider the merit of the case as the question of possession was seriously raised. I have taken the decision that petitioners have failed to establish tenancy and no further is required on the application moved for interim order which has undoubtedly negated the claim of the petitioners in this regard. In this view, the petition is dismissed, confirming the order of the Tribunal rejecting the application originally filed by Govind Poojari in No. 2464/1976-1977, dated 24-3-1977 (Annexure-G). In the circumstances, no order as to costs.

Mr. Venkatesh Dodderi, Additional Government Advocate is permitted to file memo of appearance within three weeks.