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Judgment
Anand Byrareddy, J.—1. Heard the learned counsel for the petitioners and the learned Counsel for the respondents and the learned Government Pleader.
The brief facts stated are that the land bearing survey No. 6/1 of Puttenahalli, Uttarahalli Hobli, Bangalore South Taluk, measuring 1 acre 14 guntas was said to have been under the tenancy of respondent No. 4, who was the husband of respondent No. 5 and the father of respondents 6 and 7 and occupancy rights were sought under the Karnataka Land Reforms Act, 1961 by filing Form No. 7. In all, there were four applicants seeking occupancy rights in respect of the said land. The petitioner''s father was the respondent in those proceedings. The Tribunal, by its order dated 12.6.1981 granted occupancy rights in favour of respondent No. 4, to the extent of 1 acre and in favour of the husband of the fifth respondent to the extent of 14 guntas. The petitioner claims that the very land had been acquired by the petitioner under a registered partition deed of the year 1970 and the petitioner therefore claims as the absolute owner of the said extent of the land. However, the revenue records were not transferred in favour of the petitioner, though he was cultivating the land throughout. It was his assertion that he had not leased the land in question to respondents No. 4 to 7 and much less to their father and they were never in occupation of the land in the capacity of tenants or labourers. There were no material documents produced by those respondents to prove that they were in occupation and cultivation of the land except their oral statements before the Tribunal. It was significant that the claimants ought to have demonstrated that either on 1.3.1974 or immediately prior thereto, they were in occupation and cultivation of the land as tenants, which was not established. The petitioner was not a party before the second respondent. However, the order dated 12.6.1981 directly affected his interest and immediately on coming to know of the said order, he had preferred a writ petition in WP 1643/1988 before this court and this court by its order dated 20.1.1989, was constrained to transfer the matter to the Land Reforms Appellate Authority by virtue of the said authority having been constituted. The same was registered as appeal No. LRA 17/1989 before the said authority.
During the pendency of the appeal, the authority was abolished and the petitioner again approached this court by way of a civil petition which was later treated as a writ petition in WP 8611/1991. This court, by its order dated 11.8.1997 yet again remanded the matter to the second respondent - Tribunal for fresh consideration. The petitioner claims that during the year 2001-02, the matter had been adjourned on several occasions by the Tribunal without much progress. Thereafter the petitioner had fallen ill and on account of heart ailment, was not able to prosecute the matter diligently. In the month of March 2004, the petitioner learnt that an order had been passed dated 30.4.2003 granting occupancy rights in favour of respondents No. 4 to 7 in respect of the very land to the extent of 1 acre 14 guntas in survey No. 6/1. That order was not communicated to the petitioner, but however having learnt the order in retrospect, the petitioner had entrusted the matter to a counsel and thereafter could not follow up as he had suffered epilepsy and he was admitted to a hospital. It is in this vein that the petitioner seeks to explain the delay in filing the present writ petition in the year 2005, though the order was passed in the year 2003.
The learned counsel for the petitioner would contend that the conferment of occupancy rights in favour of respondents No. 4 to 7 is arbitrary and is without basis. The application in Form No. 7 by the predecessor of respondents No. 4 to 7 was without any basis, as the said applicant was never in possession of the property and that he never cultivated the land as a tenant and except his oral statement, there was no other material forthcoming. The RTC extract in respect of the land in question had indicated that it was under the cultivation of one Krishnappa as on 1.3.1974 and not Muniswamaiah, the fourth respondent herein or Byrappa. It is the case of the fourth respondent that he along with Byrappa and Krishnappa had all together filed individual applications before the Tribunal in respect of the same item of land as well as one more item in Survey No. 7/1. The learned counsel for the petitioner would submit that if the fourth respondent and Byrappa as well as Krishnappa were cultivating the land jointly, it would have been appropriate for them to file a single application. The independent applications having been filed, it could not be construed that they were cultivating the land jointly. Secondly, there is no material evidence to demonstrate that Krishnappa had a brother by the name of Byrappa or that Krishnappa was his brother. Admittedly, Muniswamappa and Byrappa are strangers.
It is the claim of respondents No. 5 to 7, who are the legal representatives of Byrappa, that Byrappa and Krishnappa had also filed Form No. 7 in respect of the same land. Therefore, the independent applications by Muniswamaiah, the fourth respondent, and Byrappa, the deceased predecessor of respondents No. 5 to 7 and Krishnappa is inexplicable. If each was claiming an independent right of cultivation, it could not be said that there was joint cultivation. If independent applications are to be construed as joint cultivation, Muniswamappa also would be included amongst three of them, which is not the case of the respondents. Therefore, the learned counsel would submit that it is not permissible for respondents No. 5 to 7 to claim that they are the legal representatives of Byrappa, who was the brother of Krishnappa whose name was reflected in the RTC extracts.
The Land Tribunal has proceeded on the footing that the RTC extracts would reflect Byrappa and Muniswamappa and has proceeded to grant occupancy rights. The learned counsel would point out that the RTC extract as on 1.3.1974, actually showed the name of Krishnappa. This would indicate lack of application of mind by the Tribunal and on that ground alone, the learned counsel would submit, the order granting occupancy rights in respect of the land ought to be set aside.
The learned Counsel would further contend that there was no material evidence to show the relationship of Byrappa, Krishnappa and Ramanna being brothers and their joint cultivation when there were independent applications by these persons and hence, not only has the Tribunal overlooked the fact that the RTC extracts as on 1.3.1974 stood in the name of Krishnappa, it has also proceeded to hold that there was no such plea and therefore, the Tribunal was not justified in arriving at such conclusion. It is also pointed out that insofar as the evidence before the Tribunal is concerned, Krishnappa did appear before the Tribunal and had deposed admitting that Byrappa was his brother. But he has categorically stated that Byrappa had nothing to do with the land bearing survey No. 6/1 and therefore the Tribunal was not justified in overlooking the positive evidence to the contrary in conferring occupancy rights in favour of Byrappa in respect of the land in question.
The learned counsel for the respondents would vehemently seek to contest the petition and has filed statement of objections on behalf of respondents No. 4 to 7 and has asserted that Byrappa had sought for registration of occupancy rights admittedly in respect of land bearing survey No. 6/1 to the extent of 23 guntas, out of 1 acre 14 guntas and 4 guntas of kharab land and since he is no more, he is represented by respondents No. 5 to 7. Muniswamappa was a tenant in respect of the southern portion of land comprised in the said survey number to the extent of 31 guntas and his claim was separate from the claim of Byrappa. There was no conflict of interest. He was registered as an occupant as early as in the year 1981 by the order of the Tribunal to the extent of 23 guntas. Though it was subject matter of a writ petition before this court, the petition was allowed only on technical grounds. The factum of occupation of the land as tenants and the grant of occupancy rights was seriously refuted. Byrappa had also claimed occupancy rights in respect of the land bearing survey No. 7/1 to the extent of 1 acre 6 guntas comprising three portions and Byrappa was conferred occupancy rights in respect of his application pertaining to the said survey number as well. Insofar as the present petition is confined to the grant of occupancy rights in respect of survey No. 6/1. Insofar as the conferment of occupancy rights in survey No. 7/1 has attained finality.
Respondents No. 4,5,6 and 7 have filed a detailed statement along with documents and it is pointed out that from the order sheet maintained by the Tribunal dated 12.6.1981, it is evident that the father of the present petitioner, Vishwamurthachar had tendered evidence before the Tribunal and he has conceded the tenancy of Byrappa in respect of the land claimed by him and this admission would estop the petitioner from claiming otherwise and hence, the contention that there was no basis or material before the tribunal in granting such occupancy rights cannot be accepted. The petitioners seeking to dispute the relationship of Byrappa with Krishnappa is also defeated by Krishnappa himself admitting categorically before the Tribunal that he and Byrappa were brothers. Therefore, the petitioners'' lame contentions to question the grant of occupancy rights would hold no water and even the revenue records do not stand in his name. Merely claiming on the basis of a registered partition deed, the petitioner seeks to dispute the tenancy when Byrappa was a tenant under his father and not under the petitioner. Insofar as the Tribunal is concerned, the tenancy stood established with the admission by the landlord of such tenancy. Hence, the petitioner''s contention that on the basis of the partition deed, he had obtained ownership of the land is immaterial and as on the appointed date 1.3.1974, it is also not in dispute that Krishnappa was cultivating the land and he was representing the family. The fact that all the three brothers namely, Krishnappa, Byrappa and Ramanna had all filed applications seeking occupancy rights in respect the same land is in consonance with the practice that was followed before the Tribunal, in members of the same family filing independent applications and there cannot be found fault with the said procedure. The learned Counsel would submit that the present proceedings are the third round of litigation and it would be a travesty of justice again to set aside the order of the Tribunal, which is a considered order.
The learned counsel would reassert his contentions and would submit that the Tribunal has hardly applied its mind in proceeding to grant occupancy rights. Notwithstanding the arguments canvassed on behalf of respondents No. 4 to 7, the fact remains that the Tribunal has overlooked the glaring circumstances and has read into the claim of Byrappa, which was not supported by any material and has allowed his claim.
The learned Government Advocate would submit that from the record, it is seen that the Krishnappa in his deposition has admitted the relationship of Byrappa being his brother. While he has also stated that Byrappa had no claim over the land in survey No. 6/1. Secondly, it is contended that the RTC extracts as on 1.3.1974 stood in the name of Krishnappa. These are two circumstances which would certainly indicate that the Tribunal has not applied its mind to the facts and circumstances. Therefore, it would require fresh consideration by the Tribunal.
Accordingly, the petition is allowed. The order of the Tribunal is set aside. The matter is remanded for a fresh consideration. In the meanwhile, the respondents are restrained from altering the nature of the land or alienating the same and any person claiming through the respondents would also be precluded from doing so, since the order of the Tribunal is of the year 2003 and there was no occasion for the respondents to alienate the land without the express permission of the competent authorities.