Maire Hengasu and Others vs The State of Karnataka and Others

The appellants are questioning the legality and correctness of the order passed by the learned Single Judge in W.P. No. 1129/2012, dated 26.01.2012. Heard the learned counsel for the parties.

The appellants are the legal heirs of one Thaniya Mukari. According to the appellants, he had filed Form No. 7 claiming registration of occupancy rights in respect of 18 cents of land in survey No. 36/5, 13 cents of land in survey No. 38/2B, 62 cents of lands in Survey No. 46/1A/1A, 8 cents of land in survey No. 46/1B, 12 cents of land in survey No. 38/1A2, 28 cents of land in survey No. 38/3B, and 1 acre 21 cents of land in survey No. 43/3A of Kannuru Village, Mangalore Taluk, DK District.

The occupancy rights were granted in favour of legal heirs of Thaniya Mukari and Form No. 10 was also issued in their favour. Challenging the legality and correctness of issuance of Form No. 10, a writ petition was filed on an earlier occasion by the land lords in W.P. No. 25556/1998. The writ petition came to be allowed in part and the matter was remitted to the Tribunal for a limited purpose to find out, whether any order was passed by the Land Tribunal in order to issue Form No. 10 or not?

After remand without holding a certaining in regard to the order passed by the tribunal, it came to the conclusion that Thaniya Mukari had not filed Form No. 7 before the Land Tribunal. Accordingly, the contentions of the appellant''s were rejected by its order dated 23.09.2011. Challenging the legality and correctness of the order of the Land Tribunal, the writ petition came to be filed. The learned Single Judge dismissed the writ petition on the ground that � when Form No. 7 is not filed, when documents were not available before the Land Tribunal, the question of setting-aside the order of the Land Tribunal does not arise. Accordingly, he dismissed the writ petition.

While dismissing the writ petition, liberty has also been given to the appellants herein to give representation by producing the records to show that they were tenants prior to 01.03.1974 and if such application along with documents are produced, the Land Tribunal has been directed to revive the proceedings and consider the case of the parties afresh. Challenging the legality and correctness of the order of the learned Single Judge the present appeal is filed.

After hearing the learned counsel for the parties, considering the background of this case we had directed the Government Advocate to secure the register maintained by the Land Tribunal, Mangalore in respect of the application�s received from various tenants of Kannur Village in order to ascertain whether Thaniya Mukari had filed Form No. 7 or not. Accordingly, the Government Advocate has made available the register maintained by the Land Tribunal in respect of Kannr Village.

On perusal of the register it is clear to us that Thaniya Mukari had filed Form No. 7 claiming occupancy rights in respect of several extent of lands under two different land lords and said entries are found at Sl. No. 288 and 289 of the register. On perusal of the same, it is clear to us that the findings of the Land Tribunal that no application in Form No. 7 was filed by the Thaniya Mukari is incorrect and only on this short ground the order of the Land Tribunal requires to be set-aside.

We are also of the view that the order of the learned Single Judge requires to be set aside because there is no provisions under the Land Reforms Act to permit the applicants to produce the documents and seeking revival; when once the Land Tribunal has rejected the claim of the tenant and affirmed in a writ petition and if an application is filed also with fresh documents such revived application would be hit by principles of res-judicata.

Therefore, we are of the view that the Learned Single Judge has committed an error in granting such permission to the appellants. Be that as it may, the matter was remitted on an earlier occasion in writ petition No. 25556/1998 for a limited purpose because From No. 10 had been issued by the Tahsildhar in favour of the legal heirs of Thaniya Mukari. When once Form No. 10 has been issued, the presumption would be that pursuant to an order of registration of grant of land under Section-48 of the Land Reforms Act, Form No. 10 has been issued by the Tahsildar as a Member Secretary. When the matter was remitted for a limited purpose, it was the duty of the Land Tribunal to find out what happened to the application filed in Form No. 7 by Thaniya Mukari and to ascertain whether any order was passed by the Land tribunal.

Without ascertaining these factual aspects, the Tribunal has proceeded as if Thaniya Mukari has not filed any Form No. 7 which according to us is factually incorrect, because the register maintained by the Land Tribunal in respect of Kannur Village discloses that Thaniya Mukari had filed Form No. 7 claiming various lands situated in different survey numbers of Kannur Village under two landlords. Therefore, it is for the Tribunal to find out what happened to the application filed in Form No. 7 by the Thaniya Mukari and instead of doing so, has erroneously dismissed the application. In the circumstance, the appeal is allowed. The order of the learned Single Judge passed in W.P. No. 1129/2012, dated 26.06.2012 and the order passed by the Land Tribunal, Mangalore dated 23.09.2012 as per Annexure-A to writ petition are hereby quashed. The matter is remanded to the Land Tribunal, Mangalore. The proceedings of the Land Tribunal while granting Form No. 10 to the legal representatives of Thaniya Mukari and if really proceedings had not been taken place pursuant to Form No. 7 filed by Thaniya Mukari, it is for the Tribunal to consider the case of the parties on merits and in accordance with law.