Nishanth Mohamood Khan vs State of Karnataka

Dr. Jawad Rahim, J.—Petitioners in this joint writ action have brought in question the order dated 19-11-1992 in No. KLRM.120/1975-76 on the file of 2nd respondent-Land Tribunal, Tumkur and have also sought appropriate writ or direction to protect their right. In the party array, they have brought in the State of Karnataka and Land Tribunal, Tumkur, as respondents 1 and 2 and two other individuals who have set up counter-claim.

Heard learned designated Senior Counsel, Mr. S.P. Shankar for the petitioner and Mr. Venkatesh Dodderi for the State, while the other respondents, though duly served, are not represented.

The factual matrix to which learned Senior Counsel has referred to and relevant for consideration is:

"(a) Petitioners claim their grandfather-Ahamed Ulla Khan Saheb had 1/3rd share in Survey No. 152 of Amanikere Village in Tumkur Taluk measuring 2 acres 31 guntas. The land was mortgaged by him in favour of Khaderbiammma under a registered usufructuary mortgage deed dated 18-3-1911 for a sum of Rs. 100/-.

(b) Khaderbiamma died intestate leaving behind Mr. T.M. Hussain as his surviving heir and after her death, he sold the property to Mohammed Rasood. Mohammed Rasood in turn sold the property to Doddabasappa who in turn sold it to Gangappa.

(c) During his lifetime, Ahamed Ulla Khan Saheb had filed an application under Section 83 of the Transfer of Property Act, 1882 and deposited a sum of Rs. 100/- to cover the mortgage amount which was created on 18-3-1911 and sought redemption of mortgage through R.A. No. 47 of 1957.

(d) Respondents who were required to redeem the mortgage declined, consequent to which proceedings were conducted by the Court and on 9-8-1957, R.A. No. 47 of 1957 was allowed, directing the petitioners who came on record as legal heirs, to file regular suit for redemption. In terms of the said order, the father of the petitioners filed suit in O.S. No. 669 of 1957 in the Court of Munsiff for redemption of mortgage which suit was decreed on 12-9-1959 vide Annexure-A.

(e) Defendants declined to accept the verdict and assailed it in R.A. No. 160 of 1959 which was a failure by judgment dated 23-3-1961. Not satisfied, they were in second appeal in R.S.A. No. 570 of 1961 before this Court which met with the same defeat on 10-10-1963, confirming the judgment of the Trial Court in O.S. No. 669 of 1957 for redemption.

(f) Petitioners enforced the decree for redemption of mortgage through Ex. No. 57 of 1982 and obtained physical possession of the land in question, viz., Survey No. 152 of Amanikere Village, on 24-3-1983 vide Annexure-C. Delivery warrant issued is at Annexure-D. Thus they claim they are in physical possession and enjoyment right from the day they took possession through Court on 24-10-1983.

(g) While things stood thus, it appears respondents filed an application in Form 7 under the benevolent provision of Section 48-A of the Karnataka Land Reforms Act, 1961 claiming tenancy in respect of land bearing Survey No. 153 measuring 31 guntas of Amanikere Village. To support her claim, she claimed she was cultivating as tenant in the year 1975-1976. The said application was registered before the 2nd respondent-Land Tribunal vide Annexure-F in No. KLRM.897/75-76. The Tribunal conducted enquiry and favoured 4th respondent with an order of confirmation of occupancy and granted tenancy vide order dated 7-11-1978 produced and marked as Annexure-F.

(h) In pursuance to the order, respondents obtained registration certificate in Form 10, dated 15-12-1978 vide Annexure-G. Petitioners contend, Buddaiah-4th respondent''s father had claimed occupancy in respect of Survey No. 152/2 measuring 35 guntas of the same village which was granted vide order dated 14-11-1980 in No. KLRM/120/1975-76.

(i) The contention of the petitioners is, 4th respondent''s father-Buddaiah was granted occupancy right only in respect of Survey No. 152/2 measuring 35 guntas situated in Amanikere Village of Tumkur District vide order dated 14-11-1980 in No. KLRM/120/1975-76. After the death of Buddaiah, his son-Narasimhaiah (4th respondent in this writ petition) mischievously filed an application before the respondent in the year 1992, 12 years after his father-Buddaiah was granted occupancy right in 14-11-1980, stating that in view of the recent survey, he came to know he is in possession or enjoyment of 0.31 guntas in Survey No. 153/1, and Marisiddamma-3rd respondent in the writ petition was cultivating Survey No. 152/3 measuring 1.01 guntas and Survey No. 152/2 was in possession of Anwari Begum. Anwari Begum was said to be the owner of the said land. The application was filed belatedly, but was registered by the Tribunal in No. KLRM.120/1975-76 in which the Tribunal had passed the order. The Tribunal registered another case in No. KLRM/897/1975-76 and entertained the application though the order was passed in that case on 7-11-1978."

Referring to these facts, petitioners'' Counsel would contend, the application filed by the 4th respondent-Narasimhaiah could not have been entertained by the 2nd respondent since it had no power of reviewing its own order. According to him, the only provision available for review is under Section 122-A of the Karnataka Land Reforms Act by which the Tribunal has been conferred with power of review of the order made under Section 67(1) and not under the provisions of Section 48 or 45. They contend, the orders passed by the Tribunal on 14-11-1980 and 7-11-1978 were under the provisions of Section 122-A and therefore review saved by Section 122-A was not available. On this position, they contend 2nd respondent could not have entertained the application for amendment made by the 4th respondent to change survey numbers from 152/1, 152/2 and 152/3. On this basis they seek quashing of the order dated 19-11-1992 in No. KLRM.120/1975-76 ordering amendment of the order dated 14-11-1980 and another order dated 7-11-1978 passed in No. KLRM.898/1975-76.

As noted above, I have taken into consideration the grounds urged by the petitioner''s Counsel, State Government and perused the records in supplementation thereto as none represented the respondents.

From the factual matrix, it is manifest that petitioners claim to be in possession of land bearing Survey No. 152/3 measuring 1.07 acres on 24-3-1983 after redeeming the mortgage. All the family members have declared they never transferred the land in favour of anyone and that statement is not disputed. Thus this is a case where the proceedings initiated by the Tribunal on the basis of Form 7 submitted by the father of 4th respondent in which after enquiry, an order has been passed on 7-11-1978 in No. KLRM.898/1975-76 and another order dated 14-11-1980.

As rightly pointed out, till 1992 the beneficiary of the order dated 14-11-1980 and 7-11-1978 had not raised any question about difference in the survey number. It is also evident from the proceedings before the Tribunal that the 4th respondent did not contend there was any typographical error or mistake of fact mentioned in the survey number in the order dated 14-11-1980 or in the order dated 7-11-1978. The application would reveal, he had sought for virtually granting occupancy right in respect of a new survey number and has indicated it as Survey No. 152/3. The question therefore is, whether the Tribunal in the guise of carrying out amendment to the order passed by it on 14-11-1980 and 7-11-1978, could grant a new survey number to the respondent.

A perusal of the order would show without giving any opportunity to all concerned and without considering the fact that by entertaining the application, the Tribunal has re-opened the case. It has also failed to note that petitioners have shown factum of possession in respect of land in Survey No. 152/3 measuring 1.01 acres in Amanikere Village and have substantiated they took possession by virtue of the Court order vide Annexures-A and D on 24-3-1983 and their possession is uninterrupted and undisturbed. Annexure-H passed by the Tribunal on 19-11-2002 allowing the application filed by the 4th respondent shows the Tribunal has virtually reviewed its order which is not permissible under the Act as the order is passed by the Land Tribunal in proceedings relating to action under Section 48-A and not Section 67(1). The direction issued under Annexure-H by the Tribunal to correct the order passed earlier so as to declare occupancy right in favour of the 4th respondent-Narasimhaiah measuring 0.35 guntas in respect of Survey No. 152/1, 1.01 acres in Survey No. 152/3 in favour of Marisiddamma is held as illegal and thus the order at Annexure-H, dated 19-11-1992 is liable to be quashed.

As no other issue arises for consideration except the legal competence of the Land Tribunal to review its own order, I have considered the case-laws cited at the Bar and the conspectus of the Land Reforms Act. It admits of no doubt that by the order at Annexure-H, the Tribunal has virtually undone its earlier order under the guise of ''correction''. Though the word used is ''correction'', it is virtually review and fresh order being passed.

Mr. S.P. Shankar, learned designated Senior Counsel for Mr. Khaleemulla Shariff submitted that the Tribunal has no jurisdiction to review its own order or to rectify it and gains citational support relying on the decision of this Court in the case of H.B. Shingappa Gowda Vs. Land Reforms Tribunal and Others, , wherein this Court opined that the Tribunal has no right to review or recall its order once it has reached finality. If such order is passed, it is ultra vires and liable to be set aside.

In the case of R. Krishnaswamy Rao Vs. Lakshmaiah Setty, , this Court opined thus:

"In Form 7 filed by the first respondent he specifically claimed occupancy right over an area of 17 guntas comprised in Sy. No. 49 of Beerasettihalli. The application seeking amendment came to be filed only after the Tribunal rejected the application filed by the first respondent in Form 7 and during the pendency of the appeal before the Land Reforms Appellate Authority. When the claim was confined to 17 guntas comprised in Sy. No. 49 any further claim in respect of the area other than 17 guntas comprised in the very same survey number would amount to making fresh claim".

In yet another decision in the case of Seethadevi Vs. Narayana Kamath, , the Division Bench held thus:

"In view of Section 48-A(3), if any mistake has been committed in the application filed in Form 7 filed within time the application for amendment can be made by the party concerned before the Tribunal, and the Tribunal has the jurisdiction to allow the amendment application if it is satisfied that in not allowing the amendment, it would result in miscarriage of justice".

The first two decisions deal with the power of the Tribunal to review its order or to amend its order. The second decision gives margin to say if amendment application is filed, corrected, etc., within the time fixed under the provisions of the Act, then such application could be considered by the Tribunal if it is of the opinion by that not allowing the amendment, it would result in miscarriage of justice.

By the impugned order dated 19-11-1992, in the guise of allowing the application, the survey number has been amended as Sy. No. 152/3, consequent to which petitioners'' right is affected.

In the result, I am satisfied petitioners have made out case for granting the relief sought. The impugned order at Annexure-H cannot be sustained and particularly in view of the fact that it has reached finality as envisaged under Section 48-A of the Act, there is no question of review. In the result, I accept all grounds in the writ petition. The writ petition is allowed. The impugned order at Annexure-H, dated 19-11-1992 is quashed as illegal an non est. However there is no order as to costs.

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