Lilly Suvaris and Others vs The Land Tribunal, Mangalore Taluk and Others

Anand Byrareddy, J.—1. The learned Counsel for the petitioner has consistently remained absent. As seen from the order sheet, on every date the matter was posted, it was being adjourned from time to time. Today, when the matter is called out, the counsel again remains absent.

Heard the Counsel for respondent No. 2 and the learned Government Advocate.

The petition and the record is perused. The facts as emanating from the petition are as follows:

"The petitioner claims to be in possession of land bearing Survey No. 118/1 among other properties situated at Konaje village, Mangalore Taluk. It is the case of the petitioner that the said land was never leased out in favour of the second respondent. Originally, Lawrence Suvaris and Daniel Suvaris had jointly purchased the disputed land along with certain other agricultural properties in the aforesaid village, under a sale deed dated 17.11.1942. Lawrence Suvaris and Daniel Suvaris are said to be the brothers-in-law of the petitioner, being the brothers of her husband, Paul Aloyesius Suvaris. After the demise of Lawrence Suvaris and Daniel Suvaris, the petitioner claims to have become the absolute owner of the properties, including land bearing survey No. 118/1.

It is contended that one Thomas Roche, the father of the second respondent was a chalageni tenant in respect of certain items of agricultural lands, including a small portion of survey No. 118/1 measuring 1 acre 35 cents and land bearing survey No. 118/2, measuring 20 cents. The said Thomas Roche also executed a chalageni chit dated 20.6.1960, in favour of Lawrence Suwaris and Danial Suvaris. It is the case of the petitioner that the remaining portion of land bearing survey No. 118/1 and 118/2 were never tenanted by any person and it was always in the possession and enjoyment of the petitioner.

With the coming into force of the Karnataka Land Reforms Act, 1961 and the Karnataka Land Reforms Amendment Act, 1974, Thomas Roche, the father of the second respondent and his two sons had filed a declaration claiming occupancy rights. These applications were numbered separately.

It is the case of the petitioner that the sons of Thomas Roche were never tenants either under the petitioner or her predecessors-in-title, but had raised a false claim. The Land Tribunal, by its order dated 29.7.1981 had allowed applications filed by Paul Roche and granted occupancy rights including land bearing survey No. 118/2B measuring 20 cents and survey No. 118/1E measuring 28 cents and survey No. 118/1G measuring 1 acre 30 cents. It is contended that the second respondent was a mechanic and was not an agriculturist. It was denied that the second respondent was a tenant as on 1.3.1974 or prior to that date, but the Tribunal had, by a separate order dated 29.7.1981, granted occupancy rights in favour of the second respondent in respect of land bearing survey No. 118/1A measuring 3 acres. The petitioner, being aggrieved, had preferred a writ petition before this court in WP 6863-73/1981 before this court. Those petitions were transferred to the Land Reforms Appellate Authority, Mangalore and were separately numbered. The Appellate Authority, by a detailed order, had set aside the order of the Land Tribunal insofar as the grant of occupancy rights in respect of land bearing survey No. 118/1 of all the claimants, except the claim of Thomas Roche and Paul Roche, the brother of the second respondent. Aggrieved by which, the second respondent had preferred a revision petition before this court in LRRP 6378/1988. This court by its order dated 2.12.2001, set aside the order of the Appellate Authority and remitted the matter to the Land Tribunal, Mangalore with a specific direction to take into account the evidence adduced by both the parties and pass fresh orders insofar as the land bearing survey No. 118/1A. Thereafter, the Land Tribunal took up the matter, but in gross violation of the specific directions issued by the court and without considering the material evidence on record, granted occupancy rights in favour of the second respondent by its order dated 30.3.2002. The petitioner had challenged the correctness of the said order and this court had allowed the writ petition and remitted the matter to the Tribunal for a fresh inquiry. On remand, the Tribunal has proceeded with the inquiry, but without following the directions issued by this court and without appreciating the material evidence had granted occupancy rights in favour of the second respondent as per order dated 30.3.2002. The petitioner herein had challenged the said order before this court in a writ petition in WP 3240-42/2003 and this court had again remanded the matter for a fresh inquiry and thereafter, the Tribunal has passed the present order dated 3.2.2007 illegally granting occupancy rights in favour of the second respondent. It is pointed out that the Tribunal though had formulated a point for determination has answered the same without assigning proper reasons and ignoring the earlier evidence on record. Therefore, the same is under challenge in this petition.

It is contended that the revenue records disclose that the land is punja land and is unfit for cultivation, but without holding a spot inspection, the Tribunal has erroneously concluded that the land is capable of being brought under cultivation. The Tribunal has ignored the evidence that was on record and has recorded by the Tribunal. It is on three occasions, on earlier remands, and there is no material document to show that the land was tenanted as on 1.3.1974 the second respondent had not produced any document to prove its tenancy but occupancy rights conferred on the second respondent.

Insofar as the question whether the second respondent was an agriculturist though the petitioner had never admitted that he was so, the Tribunal has arrived at a finding that it was admitted by the petitioner that inspite of notice, the landlord had not appeared before the Tribunal and has proceeded to grant occupancy rights. The Tribunal having placed reliance on earlier finding, which was set at naught, is wholly illegal, in that reliance is placed on an order dated 30.9.1981 passed by the appellate authority, which had been set at naught. It is in this vein that the petition is filed denying the claim of the second respondent.

It is contended that the father of the second respondent was a tenant in possession of certain portions of land in survey No. 118 as seen from the geni chit at Annexure-B to the petition and the Land Tribunal had granted 1 acre 58 cents in that survey number in favour of Paul Roche, the brother of the second respondent. Taking advantage of the situation, the second respondent had also filed a declaration and the Land Tribunal, without considering the said aspect, has illegally passed the impugned order. When the land was not agricultural land and it was not being cultivated by the second respondent, false statements which were made by the second respondent have been accepted without holding any spot inspection and therefore the order of the Tribunal is vitiated. It is also contended that during the lifetime of Thomas Roche, the second respondent herein had claimed the land separately and had filed separate declaration claiming occupancy rights. Merely because the second respondent''s father was a tenant under the petitioner''s predecessor-in-title, it would not follow that the tenancy of the second respondent also was to be taken as an established fact. It is thus contended that the Tribunal was in error in holding that the second respondent had proved the tenancy. The Tribunal''s further finding that a perusal of the record of rights for the year 1968-69 justified the contention of the second respondent as also established, since the RTC for the year 1967-68 did not disclose the name of the second respondent as tenant. It is in this manner that the petition is filed claiming that the order of the Tribunal is illegal and is liable to be set aside."

The learned counsel for respondent No. 2, on the other hand, would contend that the petitioner is not the absolute owner in possession of the disputed land. Originally, Lawrence Suvaris and Daniel Suvaris had jointly purchased the disputed land under a sale deed dated 17.11.1942. It is not clear as to upon demise of Lawrence Suvaris and Daniel Suvaris, the petitioner inherited the property. The petitioner therefore has no locus standi unless she is in possession to establish her title to the property. On the other hand, it was the father of the second respondent, Thomas Roche, who was the tenant of the disputed land even prior to the sale deed of the year 1942. The recitals in the sale deed itself clearly show that all the properties were sold, including the disputed land to Lawrence Suvaris and Daniel Suvaris, who were in possession as chalageni tenants. This is also admitted by the petitioner in her evidence before the Tribunal. Therefore, there is absolutely no evidence by the petitioner to show that either Lawrence Suvaris or Daniel Suvaris or the petitioner have taken possession of the disputed land from respondent No. 2 or his father at any point of time after the year 1942. A chalageni chit produced by the petitioner at Annexure-B to the petition clearly disclose that Thomas Roche, the father of the second respondent was a tenant of a larger extent of land in land bearing survey No. 118/1 and that is larger than what is claimed by the petitioner. Therefore, the averment that the remaining portion of land bearing survey No. 118/1 and 118/2 were not tenanted in favour of any other tenant and was in the possession of the petitioner is belied.

It is contended that the two sons of Thomas Roche, namely, Paul Roche and the second respondent had filed declarations claiming occupancy rights along with their father as they were cultivating different portions of land bearing survey No. 118 together. The Land Tribunal, by its order dated 29.7.1981, had granted occupancy rights in favour of Paul Roche, the brother of the second respondent and that the appellate authority had affirmed the order of the Land Tribunal, however, while conferring occupancy rights in favour of Paul Roche. The petitioner had not challenged the order of the appellate authority. It is denied that the second respondent is a Mechanic by profession. It is asserted that the second respondent and his father were tenants in possession of the disputed land as on 1.3.1974 or even prior to that date. It is in that background that the Tribunal had granted occupancy rights. It is contended that on two occasions, this court had set aside the order passed by the Land Tribunal and remitted the matter to the Land Tribunal, and the Land Tribunal has framed five points for consideration and has answered the same in favour of the second respondent. Therefore, no illegality or irregularity in the order passed by the Tribunal, which is based on material evidence. Though the land is described as punja land, which is not hillock, it was disclosed in the evidence of the petitioner that there is perennial water supply and that there are several trees growing on the land and the house of the respondent No. 2 is also situate on the land prior to 1.3.1974 and the respondent is drawing water from the two tanks present on the disputed land through the pump set installed to water fields and garden in the disputed land. The chalageni chits produced before the Land Tribunal clearly indicated that the second respondent''s father Thomas Roche was in occupation as a tenant of the disputed land as on 1.3.1974 and even the RTC entries clearly showed that Thomas Roche was the tenant in possession of the disputed land and therefore the land would have to be vested in the State as on 1.3.1974 and ultimately has been granted in favour of the second respondent. Having regard to the establishment of occupation of respondent No. 2 and cultivation of the land as on 1.3.1974 and in the face of the admission by the petitioner in her evidence that neither the respondent nor the father surrendered the tenanted lands at any point of time and the geni receipts produced by the second respondent also fortifying his case, the requirement of holding spot inspection did not arise, as the case of the second respondent was clearly admitted by the petitioner herself and hence the contention that the land being agricultural land and the second respondent being an agriculturist and the tenancy of the second respondent being established as on 1.3.194, having been met, the grant of occupancy rights cannot be said to be illegal or without any basis. Consequently, the counsel would seek that the petition be dismissed.

The learned Government Advocate, on the other hand, would also support the case of the second respondent from an examination of the material on record available. Hence, bare denial of the facts, which have been found in favour of the second respondent would not advance the case of the petitioner. There is no material irregularity highlighted by the petitioner. Except denying that the second respondent was not an agriculturist, there is no material to show that he was employed as a Mechanic and was not an agriculturist. The other contention that the land was punja land and was not agricultural land is also belied by the fact that there was evidence on record to indicate that it was capable of being brought under cultivation and has perennial water supply, which has been found favour with the Tribunal, which cannot be faulted and the tenancy also having been established as on 1.3.1974, there is no illegality in the order of the Tribunal.

The petition lacks merit and is accordingly dismissed.