Saraswathibai vs Thimmaji

K.N. Phaneendra, J.—This writ appeal is preferred being aggrieved by the judgment dated 31.05.2012 passed in Writ Petition No. 5122/2007 by the learned Single Judge dismissing the writ petition of the appellant herein. For the purpose of convenience, we would like to retain the ranks of the parties as per their ranks in the writ Court petition.

Before adverting to the important aspects involved in this case, it is just and necessary to bear in mind few facts that prompted the appellant to approach this Court by way of Writ Petition. It is an undisputed fact that the lands bearing survey Nos. 287 measuring 25 acres, survey No. 317 measuring 9 acres 36 guntas and survey No. 142 measuring 20 acres situated at Sindi Kurubet Village, Gokak Taluk, District: Belgaum are the lands originally belonged to one Sri V.R. Desai of Sindi Kurubet. The petitioner is no other than the legal representatives of the said V.R. Desai. The respondent No. 1 claiming himself to be the tenant of said lands, has made an application under Section 48A of the Karnataka Land Reforms Act, 1961. The Tribunal at the first instance rejected his claim. Consequently, he challenged the said order by way of writ petition in No. 13417/1981, which was allowed and the application was restored on to the file of the Land Tribunal for fresh disposal in accordance with law. After the remand, the Tribunal held that the 1st respondent was a tenant of the land as on the appointed date i.e., on 01.03.1974 and granted occupancy rights in respect of the said lands. It appears, during the pendency of the proceedings before the Tribunal, one of the parties died and Tribunal has passed the order in favour of a dead person. On that ground, the order of the Land Tribunal granting the occupancy right in favour of the respondent was challenged in the writ petition No. 41960/1993. This Court allowed the said writ petition on the ground that the order passed in favour of dead person is a nullity and remanded the matter to the Tribunal for holding fresh enquiry. The Tribunal once again held a detailed enquiry and on 29.11.2006, passed an order granting occupancy right in favour of respondent No. 1 in respect of the above said lands. The said order was challenged by the writ petitioner/appellant herein by way of writ petition. The learned Single Judge after going through the materials on record has come to the conclusion that the Tribunal has not committed any error in granting the occupancy rights in favour of respondent No. 1 and consequently dismissed the writ petition, against which the present appeal is preferred.

The learned Counsel who is appearing for the appellant has challenged the above said order of the learned Single Judge on several grounds. Mainly he raised three grounds. One is, the lands to which the occupancy rights are granted are not agricultural lands and they are only hilly rock area and not fit for cultivation. It is further contended that a person by name Ambrish Desai is not an authorised person to give any information to the Land Tribunal, particularly in Form No. 11, declaring that the said lands are tenanted lands as on the appointed date. Secondly, it is further contended that Sri V.R. Desai, who was the owner of the said property has gone in adoption and thereafter he purchased the said properties long back prior to 1968. Subsequently, the said V.R. Desai became mentally unsound and the Court of Wards appointed the Deputy Commissioner as the Guardian of V.R. Desai in the year 1966 and later, the properties were released on 06.01.1973 in favour of the appellant by the Deputy Commissioner. Therefore, there was no occasion for V.R. Desai or anybody in this behalf to create any tenancy in favour of the respondent No. 1 or in favour of anybody. Therefore, it is contended that the learned Single Judge has not properly appreciated these aspects. Thirdly, it is contended that, as on the appointed date, the respondent No. 1 or anybody was not in possession of the property as tenants. It is further contended that the lands granted in favour of the respondent No. 1 exceeds the ceiling limit and the Tribunal could not have granted the said lands without proper enquiry. Therefore, he contends that the order of the learned Single Judge is erroneous and consequently, the order passed by the Land Tribunal is also erroneous and both of them deserve to be quashed by this Court.

Learned Counsel Sri Kulkarni countering the above arguments submits that all the contentions had been properly considered and addressed by the Land Tribunal and the learned Single Judge and there is no room to interfere with the impugned judgment.

We have carefully perused the materials on record. It is worth to note here that, while remanding the case in W.P. No. 13417/1981, this Court has already observed that,

"''the Land Tribunal has not properly appreciated the relevant materials on record'', which clearly goes to show that the 1st respondent was the tenant of the land in question prior to 01.03.1974. The petitioner in support of his case produced Annexure-C before the Court in the writ petition, which was the varadi given by the land lord respondent No. 5 on 25.09.1973 to the effect that the petitioner''s name should be entered in the record of rights. Accordingly, the petitioner''s name was found in the record of rights in the year 1973-74 as per Annexure-C filed in the writ petition. It is further supported by the fact that the respondent No. 1 has paid the land revenue to the Government as per Annexures-F to M in the writ petition. In the circumstances, the finding of the Tribunal that the petitioner did not produce any document in support of his plea of tenancy is vitiated by law of application of mind on the relevant materials on record".

This particular observation made by this Court earlier was not subjected to challenge by the parties to the proceedings. The fact remains that, this Court had an occasion to deal with the factual aspects of the matter and found that the land Tribunal has committed an error in not granting the tenancy rights in favour of the 1st respondent. Though sufficient materials were available, Land Tribunal had not properly applied its mind on the earlier occasion, to consider the relevant facts and documents.

Even otherwise, we have carefully perused the order passed by the Land Tribunal. It is not a simple order granting occupancy rights. In fact, after remand by this Court, the Land Tribunal has bestowed all its attention to the facts of the case and legal aspects involved and even citing the rulings provided by the parties, has come to a definite conclusion that the respondent has been a tenant and entitled for occupancy rights. It is observed from the orders of the Land Tribunal that the writ petitioner/appellant herein, though was given sufficient opportunity, did not step into the witness, box to substantiate her claim over the property and also to substantiate the grounds urged before this Court.

It is seen from the records that vide Annexure-A by way of From No. 11, one Mr. Ambrish Desai has filed declaration holdings, which gives particulars and list of all the lands held by the petitioner as on 30.12.1974. It reveals that the said lands were part of declaration and they were described as tenanted lands.

The learned Counsel for the petitioner Sri Sheelvanth submits that, such declaration could not have been made by Mr. Ambrish Desai as a Power of Attorney Holder of Sri V.R. Desai, because the said V.R. Desai was mentally unsound and the Court of Wards has appointed the Deputy Commissioner as the Guardian of the said person up to 1973 and the lands were only released in favour of the petitioner on 06.01.1973. But very strangely, this particular ground or the factual matrix has never been taken up before the Land Tribunal and nowhere it is whispered about the mental or physical capacity of Sri V.R. Desai and no material is placed before the Court to show such existence of facts. Further added to that, even in the writ petition, the said facts have not been pleaded nor argued. For the first time before this Court in writ appeal, the said ground has been raised bereft of any materials on record. Therefore, such contention of the learned Counsel does not hold any water.

What remains is the declaration given by Mr. Ambrish Desai as a General Power of Attorney holder of Sri V.R. Desai in Form No. 11 at Annexure-A, which clearly discloses these lands are tenanted lands. The said document also discloses that the mutation entry has been recorded in No. 2330 dated 25.03.1973 and so also in the said document i.e., Form No. 11 this particular entry finds a place.

The Land Tribunal in fact considered all contentions of the petitioner herein. The respondents 2 and 3 - Siddalingaswamy and M.K. Hukkeri, though contested the proceedings before the Land Tribunal stating that they are the purchasers of the said land from its previous owner, it appears they did not chose to challenge the order of the Land Tribunal granting occupancy rights by way of writ petition before this Court. Therefore, insofar as those respondents are concerned, the order of the Land Tribunal has become final and the facts insofar as those persons are concerned reached its finality. Much has been contested by the respondents 3 and 4 before the Land Tribunal.

They in fact examined themselves and contested the proceedings and the petitioner has not at all virtually contested the proceedings before the Land Tribunal The Land Tribunal has also considered the contention of the petitioner herein that the lands granted to the 1st respondent exceeds the ceiling limit and has observed on facts that no record of rights have been produced before the Court to show that the lands of the tenant exceed the ceiling limit. Even otherwise, at any point of time, if the Government comes to the conclusion that the lands exceed the ceiling limit, it can take appropriate action in this regard, if law permits.

The Land Tribunal has also observed that on physical verification of the properties i.e., on visiting the spot, they found that the respondent No. 1 was in possession and enjoyment of the property as a tenant. Therefore, it granted the occupancy rights in his favour. The learned Single Judge has also in fact in detail considered these facts and found that the declaration in Form No. 11 is the prime document, which clearly establishes that, as on the appointed date on 01.03.1974, the respondent No. 1 was in possession as a tenant and the said land vests with the Government as a tenanted land and therefore, granting of the land by the Land Tribunal in favour of the 1st respondent is not erroneous.

The Tribunal has also considered the fact as to whether the said lands fall under the definition of Section 2(18) of the Land Reforms Act inasmuch as the contention taken up by the petitioner is that, they are the dry punja lands and consists of hill rocks and granites. Therefore, it did not fall within the definition of Section 2(18) of the Land Reforms Act. In the record of rights and in the declaration, there is no mention that these lands are in hill rock area or they are non-cultivable in nature. No evidence has been led by the petitioner either before the Land Tribunal or no other material is placed before this Court to establish the said aspect.

Therefore, the learned Single Judge has not committed any error in holding that the order passed by the Land Tribunal granting the occupancy rights in favour of the 1st respondent as proper and correct. The learned Single Judge has also granted an opportunity to the petitioner to bring it to the notice of the competent authority, if the land granted in favour of the 1st respondent exceeds the ceiling limit. It is also observed that, even if no such application is made, it is open to the concerned authority to initiate action, if it finds that the lands exceed the ceiling limit. Therefore, the said ground is also not available to the petitioner before this Court.

Looking from any angle, we do not find any irregularity or illegality committed by the learned Single Judge. The factual aspects with regard to the possession of the property by the respondent No. 1 as a tenant and the evidence given before the Land Tribunal by the adjacent land owners which is considered by the Land Tribunal, on facts are consistent right from the beginning till the disposal of the writ petition by the learned Single Judge. Therefore, on facts this Court cannot come to any other conclusion than the one reached by the Land Tribunal and the learned Single Judge. The writ appeal virtually being intra Court appeal, the Court would not normally interfere on facts in any order passed by the learned Single Judge in the writ petition unless the order is illegal, perverse or against to any statutory provisions. We do not find any such aspect in this particular case.

Therefore, the writ appeal fails and the same is liable to be dismissed. Accordingly, dismissed.