Sadashivaiah, Since Died by His L.Rs. Smt. Gurusiddamma and Ors vs The Land Tribunal

N.K. Patil, J.—The appellants assailing the correctness of the order passed by the learned Single Judge in writ petition No. 17558/2004 dated 12.11.2009 wherein the appellant had challenged the correctness of the order dated 13.9.1976 bearing case No. KHUR 13/74-75 / LRF 370/74-75 on the file of Land Tribunal, Malur granting occupancy right in favour of 2nd respondent in respect of Sy.No. 52/1 situated at Sonnappanahalli, Malur Taluk, Kolar District, have presented this appeal. Brief facts of the case are that the deceased appellant Sadashivaiah claims to have been in possession of an extent of 18 guntas of land in Sy.No. 52/1 situated at Sonnappanahalli village, Malur Taluk. He further contended that the Land Tribunal by its order dated 13.9.1976 granted 7 guntas of land in Sy.No. 52/1 and another 11 guntas of land was granted by Special Deputy Commissioner (Inams) in the said survey number. In all 18 guntas. The deceased was in peaceful possession and enjoyment of the same. It appears that the father of 2nd respondent late Sri. Kurigaia Muniswamy has filed Form No. 7 for occupancy rights. The said application has come up for consideration before land Tribunal on 13.9.1976. The father of 2nd respondent was present before the Land Tribunal. The respondent owner one Sri.Narayan Murthachar was absent. Though the notice was served on one Bhesmachar who is none other than the son, he remained ex-parte and occupancy rights was registered in favour of the father of 2nd respondent subject to survey and measurement. It is the case of the appellants, who are the legal representatives of deceased that to occupancy rights an extent of 18 guntas of land in Sy. No. 52/1 has been registered in favour of the ancestor of the appellants and 7 guntas of land was granted by Land Tribunal and another 11 guntas of land granted by the Deputy Commissioner Inams without impleading the owner. Land Tribunal passed the ex-parte order without affording opportunity to the appellants and has registered the occupancy rights. The suit in O.S. No. 448/93 has been filed by 2nd respondent for permanent injunction against the appellants on the file of the learned Civil Judge (Jr.Dvn.) Malur. Immediately thereafter, after contacting the learned Counsel who represented the parties, the appellants filed the writ petition assailing the correctness of the order passed by the land Tribunal. The said matter had come up for consideration before the learned Single Judge on dated 12.11.2009. The learned Single Judge dismissed the writ petition holding that the order passed by the Land Tribunal is more than 30 years ago and it cannot be reopened by pointing out some errors in the order impugned and it cannot be a ground to consider their request after more than three decades and they have failed to challenge the order passed by the land Tribunal at an earlier stage. Accordingly, it was dismissed.

Being Aggrieved by the order passed by the learned Single Judge and also the order passed by the Land Tribunal, the appellants have presented this appeal.

The submission of the learned Counsel for the appellants at the outset is that the Tribunal has erred in passing the order without impleading either the appellants or their ancestor to the proceedings before it. On the basis of the alleged application filed by the father of 2nd respondent for granting occupancy right in respect of Sy.No. 52/1 situated at Sonnappanahalli, Malur Taluk, Kolar District, the order has been passed. The specific case of the appellants is that the Land Tribunal has registered, the occupancy tights of 7 guntas in favour of the appellants vide Annexure-c dated 13.9.1976 in proceedings No. LRF 95/74-75 on the file of Land Tribunal, Malur and another 11 guntas was granted in favour of the appellants by Special Deputy Commissioner (Inams) and they are in peaceful possession and enjoyment of the same. Without impleading the appellants before the Land Tribunal, it has proceeded to pass the ex-parte order without conducting proper enquiry, in strict compliance of the relevant provisions of Land Reforms Act. Therefore, he submitted that the orders impugned passed by the learned Single Judge and also land Tribunal, Malur, may be set aside and prayer sought in the writ petition may be allowed.

As against this learned AGA appearing for R1 inter alia substantiated that the orders passed by the land Tribunal and also learned Single Judge submitted that the order of the Land Tribunal has been passed in the year 1976. There is an inordinate delay of more than 3 decades in assailing the correctness of the said order passed by the land Tribunal. Further, he specifically pointed out that the order passed by the land Tribunal dated 13.9.1976 was subject to Survey and Measurement. The appellants instead of making necessary application to survey the land and demarcate the boundary on the basis of the land granted in favour of the appellants on a mistaken notion has assailed the correctness of the order. Learned Single Judge has rightly observed that the proceedings is concluded for back 30 years ago and in these cases, there should be finality. He therefore submitted that interference by this Court at this stage is uncalled for.

After careful consideration of the submissions made by the learned Counsel for both the parties and after perusal of the orders impugned passed by the land Tribunal and learned Single Judge, we do not find any error or material irregularity as such committed in passing the order impugned for the reason that the land Tribunal has took up the case for consideration and issued notice on 1.10.1975 to both the parties to appear before the land Tribunal and same has been published and notified as envisaged under relevant provisions of Land Reforms Act. The land owner in spite of service of notice to the son one Sri. Beemachar, has not bothered to appear before the Tribunal. The Tribunal after verification of the record of rignts in respect of the said survey number, found the name of the father 2nd respondent''s in the relevant records as on the date on 1.3.1974 and he was cultivating the said land as tenant. Accordingly, the application filed by the father 2nd respondent was allowed subject to survey and measurement. The said aspect has been rightly taken note of and observed by the learned Single Judge that there may be some defect in the order but it is not a ground for exercising extraordinary jurisdiction under Article 226 of constitution of India when there is an inordinate delay and latches on the part of the appellants in redressing their grievance before this Court. As a the matter of fact, the inordinate delay of more than 28 years has not been explained satisfactorily by assigning cogent reasons in the writ petition except stating that he came to know only when O.S. No. 448/98 was filed for permanent injunction against the appellants and the same has been decreed in favour of the 2nd respondent. That order was also passed in the year 2002. The writ petition is filed in the year 2004. Then also, there is inordinate delay of two years and it has also not been explained properly. Taking the totality of the case, more than 28 years delay in redressing their grievance, as the parties might have settled the matter long back, interference by this Court after lapse of more than three decades is not justified, Learned Single Judge is justified in declining the relief sought for in the writ petition. Therefore, we do not find any error of law muchless material irregularity as such committed. Interference by this Court do is not called for.

Further, the writ appeal filed by the appellants also is liable to be dismissed, on yet another ground, for the reason that the writ petition is filed in the year 2004 and the same has been disposed of in the year 2009 and writ appeal filed only in the month of March 2010. The appellants, as on date, have not produced any piece of document to establish that as on 1.3.1974 they are is cultivating the land in question nor have they produced any document to show that in pursuance of the order passed by the land Tribunal granting 7 guntas in Sy.No. 52/1 and further 11 guntas of land by the Special Deputy Commissioner Inams in the said land in his favour their names have been entered in the record of rights nor have they produced atleast the relevant years record of rights as on the date of filing writ petition to show that they are cultivating the land in question. Therefore, we do not find any justification or good ground to consider the relief sought for in the writ appeal. Taking all these relevant facts and circumstance, the instant appeal filed by the appellants is dismissed as devoid of merits.

Learned AGA is permitted to file memo of appearance on behalf of 1st respondent, within four weeks. In view of the disposal of the main appeal on merits, the relief sought for in the Misc. Cvl. application does not survive for consideration. Hence, stands dismissed as having become infructuous.