Mark Seravo vs Sri. M. Dharasena Shetty and Others

N.K. Patil, J.—This appeal by the appellant/3rd respondent/tenant is directed against the impugned order dated 20/06/2012 passed by the learned Single Judge in Writ Petition No. 48253/2004(LR), wherein, the petition filed by respondent Nos. 1 to 6, questioning the correctness of the order dated 26.9.1981 passed by the Land Tribunal, Karkala, in proceeding No. TRL/59/81-82 has been allowed, the impugned order passed by the Land Tribunal has been quashed and the matter was remitted back to the Land Tribunal for reconsideration afresh in accordance with law, within six months from the date of receipt of the said order. The appellant/3rd respondent has filed Form No. 7 u/s 48A for registration of occupancy rights in respect of lands in question as a tenant. The said Form No. 7 filed by the appellant had come up for consideration before the Land Tribunal, Karkala on 26.9.1981. The Land Tribunal, after conducting enquiry as envisaged under the relevant provisions of the Land Reforms Act and Rules, has registered the occupancy rights in his favour. Being aggrieved by the registration of occupancy rights in favour of the appellant/3rd respondent, the petitioners/respondent Nos. 1 to 6, claiming to be the devotees of the Mutt have filed a writ petition for quashing of the said order in W.P. No. 48253/2004. The learned counsel for appellant/3rd respondent has resisted the said petition contending that petitioners/respondent Nos. 1 to 6 being the devotees of the Mutt cannot maintain the said petition by invoking the extra ordinary jurisdiction after 23 years. The said petition had come up for consideration before the learned Single Judge. The learned Single Judge, after hearing the learned counsel for both the parties, has allowed the said petition and quashed the order passed by the Land Tribunal and remitted the matter to the Land Tribunal for reconsideration. Being aggrieved by the said order, the appellant/3rd respondent has presented this appeal, on the ground that the order of the learned Single Judge cannot be sustained and is liable to be set aside.

The submission of the learned counsel for the appellant/3rd respondent Sri. S.R. Hegde Hudlamane is that, the order impugned passed by the learned Single Judge is not sustainable and is liable to be set aside. To substantiate the said submission, he submitted that the Land Tribunal, Karkala, has passed the order as early as on 26.9.1981 and the respondent Nos. 1 to 6, claiming to be the devotees of the Mutt on the ground that the property belongs to the Mutt cannot maintain the writ petition after lapse of more than two decades. Further he submits that, after the occupancy rights was granted in favour of the appellant/3rd respondent, he is in peaceful possession and enjoyment of the same and therefore, interference by this Court, after the lapse of two decades cannot be sustained and nor it is a fit case to set aside entire order of the Land Tribunal and to remand the matter to the Land Tribunal on the ground that some of the lands have not been claimed by the tenant. Therefore, he submitted that the impugned order passed by the learned Single Judge is liable to be set aside.

As against this, learned Additional Government Advocate appearing for respondent No. 8 and learned counsel appearing for respondent Nos. 1 to 6, inter-alia, contended and substantiated that, the impugned order passed by the learned Single Judge is just and proper and after due appreciation of the oral and documentary evidence available on file and also taking into consideration the Form No. 7 filed by the appellant/3rd respondent for registration of occupancy rights. Further, they submit that the receiver of the Mutt one M.K. Devaraj has died much prior to the order being passed by the Land Tribunal and taking undue advantage of this, tenant is not entitled for registration of occupancy rights and there was no effective assistance before the Tribunal to clarify the stand of the Mutt to which the properties belongs and therefore, the appellant is not entitled for registration of occupancy rights in respect of some of the lands which were not tenanted and not claimed and the said aspect of the matter has been rightly considered by the learned Single Judge. Further, it is specifically pointed out that, the appellant has filed Form No. 7 for registration of occupancy rights in respect of the lands in which he is not cultivating the land and after filing of Form No. 7, the Tribunal has not conducted enquiry in strict compliance of Rule 17 of Land Reforms Rules R/w Section 34 of Land Revenue Act. Therefore, they submitted that the learned Single Judge is justified in setting aside the order passed by the Land Tribunal and remitting the matter to the Land Tribunal and therefore, interference by this Court is not called for. Even the appellant/3rd respondent has failed to make out a case to entertain the relief sought by him in the remanded matter. Therefore, they submitted that the appeal is liable to be dismissed. After hearing the learned counsel appearing for both the parties and after careful perusal of the order impugned passed by the learned Single Judge, we do not find any error or illegality or material irregularity as such committed by the learned Single judge in setting aside the order passed by the Land Tribunal and remanding the matter for reconsideration afresh. The reasoning given by the learned Single Judge in paras 3 and 4 of the order is well considered end well founded one and therefore, we are of the considered view that, the matter requires reconsideration afresh by the Land Tribunal which is the original authority to consider as to whether the lands in respect of which the occupancy rights were sought vests with the government as on 1.7.1974 or not after due consideration of the oral and documentary evidence available on file and after conducting thorough enquiry as envisaged under Rule 17 of Land Reforms Rules R/w Section 34 of Land Revenue Act. Therefore, we are of the considered view that the learned Single Judge is justified in setting aside the order passed by the Land Tribunal and in remanding the matter to the Land Tribunal, after assigning valid reasons in para-5 of its order and therefore, it does not call for interference. Nor the appellant has made out any good case to interfere in the remand order passed by the learned Single Judge. Taking all these aspects into consideration, the writ appeal filed by the appellant is liable to be dismissed as devoid of merits and accordingly, it is dismissed.

In view of the dismissal of the appeal on merits, the relief sought by the appellant in IA No. I/2012 does not survive for consideration Hence, it is dismissed as having become infructuous.