U.F.M. Shivanand vs The State of Karnataka and Others

K.N. Phaneendra, J.—The petitioner has called in question the order passed by the Land Tribunal, Kumta, in No. LRM:SR:10822+303 granting occupancy rights in favour of the father of the 3rd respondent and refused to grant occupancy rights jointly in favour of father of the petitioner and father of the 3rd respondent.

I have heard the arguments of Sri A.S. Patil, learned counsel appearing for the petitioner and as well as Sri S.G. Kadadakatti, learned counsel appearing for the legal representatives of 3rd respondent and the learned Additional Government Advocate and perused the entire records.

It is evident from the records that the petitioner''s father Keshav Shirodkar had filed Form No. 7 on 14/08/1974 in respect of Sy. No. 191/4 measuring 38 guntas. Subsequently, occupancy right was granted in his favour on 30/12/1975 vide No. LRM:S:3612 and the same is not in dispute. Subsequently, on 17/08/1974, he filed another Form No. 7 for grant of occupancy rights jointly along with the father of respondent No. 3 in respect of Sy. No. 110 situate at Devagi village in Kumta taluk in respect of 8 guntas of land. The records also disclose that on 30/06/1979, the petitioner''s father Keshav Shirodkar had filed yet another Form No. 7 seeking occupancy rights in respect of 8 guntas of land in Sy. No. 110 along with another Sy. No. 101. The Land Tribunal examined in detail and came to the conclusion that father of respondent No. 3 was in exclusive occupation of the land bearing Sy. No. 110 to an extent of 8 guntas as a tenant and therefore it granted occupancy rights exclusively in respect of the said land in favour of father of respondent No. 3.

Sri A.S. Patil, learned counsel for the petitioner strenuously contended that possession over a portion of property is not in dispute i.e., to say the petitioner''s father has been in possession and enjoyment of a house constructed in the said land along with father of respondent No. 3. According to him, this particular aspect has been in detail considered in the suit filed by the father of respondent No. 3-Sadanand Viththal Shirodkar against the father of the petitioner in O.S. No. 8 of 1991. However, in the said case, possession over the house property has been accepted by the civil Court but it only stated that the tenancy rights have to be adjudicated by the Land Tribunal in respect of the landed property in the said survey number. The Land Tribunal without considering the said observation of the trial Court has erroneously granted occupancy rights in favour of the father of 3rd respondent. Secondly he contends before the Court that the joint Form No. 7 would show the signature of the father of the respondent No. 3. There is no allegation of any fraud played by the father of the petitioner in order to accept that the said Form No. 7 was filed playing fraud on the father of respondent No. 3. Therefore, when his signature in the joint application is admitted, the Land Tribunal ought to have granted occupancy rights jointly in favour of both the father of the petitioner and the father of respondent No. 3. Thirdly, he contends that he made a request to the Land Tribunal for conducting spot inspection to ascertain the exact possession of the parties over the disputed property. But the Land Tribunal, without giving any reasons, has rejected the said request and has wrongly recorded a finding granting occupancy rights solely in favour of father of respondent No. 3. He, therefore, contends that in view of the admission of the parties in their evidence and also Form No. 7 being filed jointly dated 17/08/1974, the Land Tribunal ought to have granted occupancy rights jointly in favor of both the father of the petitioner and the father of the 3rd respondent.

Per contra, Sri S.G. Kadadakatti, learned counsel appearing for the legal representatives of respondent No. 3 contended that the Land Tribunal passed the orders after giving cogent and convincing reasons, also considering the name of father of respondent No. 3 found in the RTC extract as on the appointed date and the surrounding circumstances, i.e., filing of previous Form No7 and the subsequent Form No. 7. The Tribunal, came to the conclusion that the petitioner''s father has not claimed occupancy rights in his Form No. 7, therefore, he cannot file another Form No. 7 for claiming occupancy rights jointly with father of respondent No. 3. Therefore, he contends that the Land Tribunal has rightly appreciated the material on record and granted occupancy rights in favour of the father of respondent No. 3.

On careful perusal of the orders passed by the Land Tribunal, it discloses that the Land Tribunal has not discussed with regard to the earlier Form No. 7 filed by petitioner''s father which is not available in the records. However, it is not disputed by the petitioner with regard to filing of Form No. 7 by his father in respect of land bearing Sy. No. 191/4 measuring 38 guntas and also grant of occupancy rights exclusively in favour of his father in No. LRM:S:3612 dated 30/12/1975. Admittedly, he has not stated anything about his joint possession in respect of Sy. No. 110 as a tenant along with father of respondent No. 3. Therefore, the Land Tribunal, suspected the conduct of the father of the petitioner with regard to Form No. 7 filed subsequently dated 17/08/1974. Evidence has also been led by the parties. Before the Land Tribunal, the father of respondent No. 3 has stated that the petitioner''s father informed him father of respondent No. 3) in view of coming into force of Land Reforms Act, he would like to file Form No. 7 in respect of the his (respondent No. 3) property and therefore, he need not go to the Land Tribunal and he (petitioner''s father) will take care of all further proceedings. By saying so he has taken his father of respondent No. 3) signature on the bank Form No. 7 and thereafter he also signed the said document in respect of Sy. No. 110 and submitted the same before the Land Tribunal. The said explanation has not been accepted by the Land Tribunal.

It is evident from the records that when, on 14/08/1974, the petitioner''s father filed Form No. 7 at the first instance in respect of Sy. No. 191/4, Kumta taluk, it was well within his knowledge that even in respect of Sy. No. 191/4, the father of respondent No. 3 was also in joint possession of the same as admitted by the mother of the petitioner during the course of her evidence before the Tribunal the same has been suppressed in Form No. 7 in respect of Sy. No. 191/4 to an extent of 38 guntas and accordingly vide order dated 30/12/1975, occupancy rights were granted in favour of father of the petitioner. But subsequently in Form No. 7 filed on 17/08/1974, the father of the petitioner has never stated that himself and father of respondent No. 3 have been in joint possession not only in Sy. No. 110 but also in Sy. No. 191/4. Nothing prevented the father of the petitioner to explain as to, in, how many survey numbers they have been in joint possession and enjoyment of the properties as tenants. Therefore, it clearly goes to show that he made an application for grant of exclusive occupancy rights in respect of Sy. No. 191/4, he wanted the said property exclusively for himself. He also wanted some portion of the property in Sy. No. 110 mainly on the ground that though his name does not appear in Sy. No. 110 but by virtue of the common application, he obtained signature of his elder brother. This shows the conduct of the petitioner''s father in not explaining before the Land Tribunal as to in how many lands they were in joint possession and enjoyment of the properties as joint tenants. Thereafter, he yet again filed another Form No. 7 on 30/06/1979 which is available in the records. In the said Form No. 7, he claims occupancy rights in respect of Sy. Nos. 101 and 110 of the Devagi Village, in that application also petitioner''s father never stated that father of respondent No. 3 was also in joint possession as tenant. Therefore, the conduct of the father of the petitioner in filing 3 Form No. 7 created serious doubt in the mind of the Land Tribunal that perhaps may be the reason though he was in possession of a portion of a house property in Sy. No. 110, he wanted to take advantage of the same in order to claim tenancy rights over the entire property also. In this background, the civil proceedings that took place between the parties also play a very important role.

In the year 1991, the father of 3rd respondent has filed a suit in O.S. No. 8 of 1991 against the father of the petitioner for recovery of possession of the suit house and for other relief. The initiation of the suit itself goes to show that the said property, as mentioned, is a house property bearing No. 94 given by Alakod Mandal Panchayat and the plaintiff - (father of 3rd respondent) has stated that the eastern portion of the said house is in occupation of the defendant, who has been in permissive possession since 10 years. Therefore, to that extent the plaintiff is claiming recovery of possession of the suit house claiming that the father of the petitioner was in possession of the property on the basis of the permissive possession. The trial Court has framed several issues particularly with regard to the possession of the said house and ultimately by answering the said issues held that the plaintiff and defendant are in possession of two separate portions of the house which is numbered as 94A and 94B respectively and they are in joint possession of the said house. It is specifically made clear by the civil Court that

"when the claim is with regard to the house property only, the court can in exclusion of the agricultural land, adjudicate the matter in issue between the parties. Therefore, though the land surrounding the suit house is in dispute and pending before the Land Tribunal, the Court would adjudicate the claim with regard to the suit house in exclusion of the said tenancy land. Therefore, to try the claim with regarding to the suit house, there is no such impediment though the tenancy dispute with regard to the suit land is pending".

The above said observation by the Trial Court is absolutely correct and on the basis of the admission between the parties, it is clear that the father of the petitioner was in permissive possession of the house property as per the claim of father of respondent No. 3. Therefore, possession so far as it relates to the house property is admitted by the parties. Taking advantage of the same, it appears the parties have given evidence before the Land Tribunal. It is very astonishing factor that the mother of the petitioner was examined before the Land Tribunal. She has stated in her statement that her husband''s brother i.e., father of respondent No. 3 was also in joint possession of Sy. No. 191/4 and she has no objection for granting the land to that extent in favour of respondent No. 3 in respect of the Sy. No. 191/4. The above said fact creates a serious doubt with regard to the conduct of the father of the petitioner, that has been appreciated by the Land Tribunal.

The conduct of the petitioner''s father be that as it may, but the fact remains that the Land Tribunal has to consider as to who was in occupation of the tenanted land as on the appointed dated. The records namely RTC extracts pertaining to Sy. No. 110 categorically discloses the name of the father of respondent No. 3 as an occupant. There is absolutely no mention that the father of petitioner was also in joint possession and enjoyment of the property as a tenant. Therefore, considering all the surrounding circumstances and also the conduct of the father of the petitioner, the Land Tribunal came to the conclusion that the petitioner''s father has not made out a case that he was also in joint possession of the agricultural portion of Sy. No. 110 to an extent of 8 guntas excluding a house as a tenant. Therefore, it dismissed Form No. 7 filed by the petitioner''s father. Though the possession to the extent of a portion in the suit property is admitted by the father of 3rd respondent it cannot be at any stretch of imagination taken as an admission, so far as the landed portion within the said survey number.

Therefore considering all these circumstances, the Land Tribunal has properly appreciated the oral and documentary evidence on record and granted occupancy rights exclusively in favour of father of 3rd respondent.

Last but not least, learned counsel has contended that if the Land Tribunal had inspected the spot, it would have come to know that the joint possession of the suit property.

As rightly observed by the Land Tribunal that in view of the materials available on record and the admissions of the parties, the inspection of the spot was unwarranted. I do not find any strong reasons to differ from the observation made by the Land Tribunal. Therefore, for all the above said reasons, I do not find any reason to interfere with the orders passed by the Land Tribunal in granting occupancy rights in favour of the father of respondent No. 3 in respect of Sy. No. 110 to an extent of 8 guntas.

Hence, writ petition being devoid of merits is liable to be dismissed. Accordingly dismissed.