T.K. Channamaregowda vs N. Nanjunda Setty and Others

K.L. Manjunath, J.—The legality and correctness of the order passed by a learned Single Judge in WP No. 38774 of 2002 dated 10-12-2002 is called in question in this appeal.

Against the aforesaid order passed by the learned Single Judge, the present appeal was filed by the appellants herein. A Division Bench of this court had taken the view that the appeal against such an order was not maintainable and the writ appeal was accordingly dismissed without considering the case of the appellants on merits. The matter was taken up by the appellants before the Hon''ble Apex Court. The Hon''ble Apex Court set aside the order of the Division Bench, remanded the matter for fresh consideration on merits and in accordance with law. Therefore, the matter is now posted before us to hear the appeal on merits.

Heard Sri Padmanabha V. Mahale, learned senior counsel appearing for the appellants, Sri B.R. Srinivasa Gowda, learned counsel for the respondents 1(a) to 1(h), Sri D Nagaraj, learned AGA for second respondent and Sri R.B. Sadashivappa for respondents 3 and 4.

The facts leading to this appeal are that: Deceased Nandjunda Setty was the owner of land bearing Sy No. 358 of Rayasandra village in Kanakapura taluk, measuring 3 acres 18 guntas. The deceased appellant Channamaregowda filed an application before the land tribunal, Kanakapura in case No LRF(R) 2/76-77 on 30-12-1976 to register him as the occupant of the land, contending that he was the tenant of the land in question under deceased Nandjunda Setty from six years prior to the date of filing of the application. The application was resisted by the Nandajunda Setty, on the ground that there was no relationship of landlord and tenant between him and Channamaregowda and that the land in question was mortgaged by Nanjunda Setty in favour of the wife of Channamaregowda by name Parvathamma under a registered mortgage deed dated 3-2-1973 for a sum of Rs. 7,000/-. The mortgage was with possession and pursuant to the possessory mortgage, Parvathamma was in possession of the land in question and on her behalf Channamaregowda was cultivating the land. It was also the case of the original owner of the land that he had filed a suit for redemption of the mortgage against the wife of Channamaregowda in OS No. 185 of 1980, which was later transferred to Ramanagaram court and renumbered as OS No. 103 of 1983. The suit filed by deceased Nanjunda Setty came to be dismissed and against the said judgment and decree, he had filed an appeal in RA No. 44 of 1984 on the file Civil Judge, Ramanagaram, which appeal came to be allowed. Against the said judgment and decree passed in RA No. 44 of 1984, the wife of appellant Channamarwegowda had taken up the matter before this court in RSA No. 1038 of 1996, which appeal came to be dismissed. Thus, the judgment and decree granting redemption of mortgage in favour of Nanjunda Setty has become final.

On 6-6-1979, the land tribunal considering the application of Channamaregowda, rejected the same. Aggrieved by the same, a writ petition in WP No. 33132 of 1982 came to be filed and when the said writ petition was pending, on account of an amendment to the Karnataka Land Reforms Act, 1961, the writ petition stood transferred to the land reforms appellate authority and numbered as LRA 875 of 1987. On account of a further amendment to the Act, the appellate authority was abolished and consequently the said appeal stood transferred again to this court and numbered as WP No. 967 of 1993, which matter came to be allowed and remanded to the land tribunal for fresh consideration.

The land tribunal, after recording the evidence let in by the parties and inspecting the spot, allowed the application filed in form No. 7 and granted occupancy rights in favour of appellant Channamaregowda. Aggrieved by the order of the land tribunal, the matter was carried to this court in WP No. 38774 of 2002, which writ petition came to be allowed in terms of the order dated 10-12-2003. Consequently, the application filed in form No. 7 came to be rejected. Against this order the present appeal is filed.

The contentions of Sri Padmanabha V Mahale, learned senior counsel appearing for the appellants, are that: The learned Single Judge has committed an error in allowing the writ petition without considering that the land tribunal, after considering the evidence of the witnesses examined on behalf of the appellants, gave a categorical finding that Channamaregowda was cultivating the land much prior to the land was mortgaged in favour of his wife. According to him, the said finding of fact could not have been reversed by the learned Single Judge solely on the ground that as on the appointed date i.e. on 1-3-1974, the RTC was not standing in the name of Channamaregowda and relying upon the mortgage deed the learned Single Judge could not have set aside the order passed by the land tribunal. According to him, the learned Single Judge did not consider the spot inspection report and the tribunal having found during the course of spot inspection that the appellant Channamare Gowda was cultivating the land. Therefore, the learned Single Judge ought not to have set aside the findings of the tribunal. He further contends that the entries in the RTC are only have presumptive value and such presumption is rebuttable and the same has been rebutted by the appellants by letting in evidence before the tribunal. In the circumstance, he requests the court to allow the appeal and set aside the order passed by the learned Single Judge.

Sri D. Nagaraj, learned AGA appearing for the second respondent and Sri R.B. Sadashivappa, learned counsel for the respondents 3 and 4, supporting the order passed by the learned Single Judge, contend that at no point of time the land in question was leased to the appellant Channamaregowda by the deceased Nanjunda Setty. According to them, the land in question was in actual possession of Nanjunda Setty till the same was mortgaged under a registered mortgage deed dated 3-2-1973 in favour of Parvathamma, wife of Channamaregowda. Taking us through the mortgage deed produced before the land tribunal, they contend that on 3-2-1973, Parvathamma was put in actual possession of the land in question and Parvathamma having accepted the possession under the possessory mortgage has been in possession of the land. They further contend that if really the land in question was a tenanted land and Channamaregowda was a tenant of the land in question prior to 3-2-1973, in the registered mortgage deed, there would have been a recital to the effect that the land in question was in the possession of appellant Channamare Gowda as a tenant, who is the husband of the mortgagee. Therefore, they contend that in order to grab the property of Nanjunda Setty, the husband and the wife hatched a plan to file an application in form No. 7. They further contend that evidence was also let in before the district land reforms appellate authority and in the said proceedings, appellant was examined and in his evidence he deposed that he has been cultivating the land since 1965 as a tenant, which is quite contrary to the averments in the application made by the appellant Channamaregowda in form No. 7. According to them, in form No. 7 and also before this court, it is the specific contention of the appellants that six years prior to filing of the form No. 7, the land was leased to the appellant Channamaregowda by the deceased Nanjunda Setty. If this statement is accepted, six years from prior to the date of filing of form No. 7, it should have been from 1970 and not prior to that. If Channamaregowda was a tenant right from 1970, how he could depose before the appellate authority that he has been cultivating the land as a tenant since 1965? They further submits that for the first time, the RTC entries were changed to the name of Channamare Gowda only after the registered mortgage deed was executed by Nanjunda Setty in favour of Smt. Parvathamma, wife of Channamaregowda. Therefore, they submits that the learned Single Judge is justified in allowing the writ petition.

They further submits that even if the contention of the appellant Channamaregowda that when the tribunal conducted spot inspection, it was found that the appellant Channamaregowda was in possession of the land, cannot be ruled out, because, it is also the case of respondent Nanjunda Setty that the appellant Channamaregowda has been cultivating the land along with his wife Parvathamma as a mortgagee from 3-2-1973. If the land tribunal visited the spot subsequent to filing of the form No. 7, the tribunal was required to say that on the date of inspection, the appellant Channamare Gowda and his wife were in possession of the property. Therefore, they submit that no much importance can be attached to the spot inspection report, because, as on the date of inspection by the tribunal, the wife of appellant Parvathamma was a mortgagee of the land in question and she was found to be in possession as a possessory mortgagee. They lastly contended that for the first time, in order to knock off the valuable property of Nanjunda Setty, though the appellant Channamaregowda also contended that he had divorced his wife Parvathamma, no material was placed before the court to prove that he had divorced his wife. In the circumstance, they submit that the order of the learned Single Judge is just and proper and cannot be interfered with in an intra-court appeal.

Having heard the learned counsel for the parties, what is to be considered by us in this appeal is whether the learned Single Judge has committed an error in allowing the writ petition warranting interference by this court?

The appellant Channamaregowda is claiming tenancy rights by filing form No. 7 before the land tribunal. According to him, from six years prior to the date of filing of form No. 7, which was filed on 30-12-1976, he has been a tenant under late Nanjunda Setty. But, it is the specific case of Nanjunda Setty that at no point of time Channamaregowda was a tenant under him. According to him, on 3-2-1973, the land in question was mortgaged in favour of Parvathamma, wife of Channamaregowda for a sum of Rs. 7,000/- under a registered possessory mortgage deed. It is the contention of Nanjunda Setty that Channamaregowda, as on the date of filing of the form No. 7, was in possession of the land as the husband of mortgagee Parvathamma.

Therefore, the crucial point that has to be considered by us in this appeal is:

"Whether the appellant Channamaregowda has proved that prior to execution of the registered mortgage deed in favour of his wife Parvathamma, he was a tenant of the land under Nanjunda Setty?" 13. According to him, he was a tenant from six years prior to the date of filing of form No. 7 before the land tribunal. To prove that he was a tenant in respect of the land in question since 1970, no documentary evidence is placed to show that he was cultivating the land as a tenant. In the absence of such documentary evidence, the contention of Sri Sadashivappa, learned counsel for the respondents 3 and 4 that when the registered mortgage deed was executed on 3-2-1973 in favour of the wife of Channamaregowda, it is categorically recited that possession of the land was handed over to the mortgagee on the date of execution of the mortgage deed. If really the appellant Channamaregowda was a tenant much prior to the execution of registered mortgage deed, there was no difficult for the wife of the appellant i.e. the mortgagee, to mention that the possession was already with her husband as a tenant of the land in question. In the absence of such material, when the registered mortgage deed of the year 1973 discloses that Parvathamma was put in possession of the land on 3-2-1973, it is difficult to hold that the appellant Channamaregowda was a tenant prior to 3-2-1973. According to us, he was never a tenant under Nanjunda Setty and therefore, the learned Single Judge is justified in reversing the finding of the land tribunal. On a perusal of the RTC records, we are also of the opinion that the finding of the learned Single Judge is just and proper and does not call for any interference. As rightly contended by the learned counsel for the respondent-landlord, that in order to see that the property shall not be handed over to Nanjunda Setty, even though payment has been made by him and a decree was obtained by him for redemption, the application has been filed by Channamaregowda in connivance with his wife Parvathamma only to deprive Nanjunda Setty of his property.

Sri Mahale, learned senior counsel appearing for the appellants, has relied upon the judgment of this court in the case of Melegowda Vs. Gaibu Sab and Another, . The facts of this case and the facts involved in the said decision are not identical. In the case of MELLEGOWDA, he was cultivating the land as a tenant and later became a usufructuary mortgagee and this court had occasion to consider the effect of execution of such usufructuary mortgage and whether the tenancy rights would revive in favour of the mortgagee on account of redemption? But, in the instant case, it is not the case of the appellant Channamaregowda that he was a tenant earlier and later the property was taken on mortgage and on redemption of the mortgage, the tenancy would revive. According to the appellant, the appellant was a tenant in his individual capacity and the mortgagee was his divorced wife. Therefore, the judgment relied upon by the learned senior counsel has no application to the facts of this case.

Learned senior counsel has also relied upon the judgment of the Supreme Court in the case of RAM v. STATE OF KARNATAKA [(2004) 7 SCC 790], in regard to the effect of spot inspection conducted by the land tribunal. In so far as this judgment is concerned, the same is also not applicable to the facts of this case, because, in the instant case, we have already categorically reached a finding that when the spot inspection was conducted by the tribunal, the appellant Channamare Gowda was in possession of the land in question as the husband of the mortgagee. Therefore, this judgment is also of no avail to the appellants.

In the circumstance, we do not see any merits in this appeal and the appeal is dismissed accordingly.