Kempayya, K.C. Chandrashekaraiah, K.C. Rajanna and K.C. Shivaraju vs The Land Tribunal and Others

Huluvadi G. Ramesh, J.—Petitioners have sought for issue of writ of certiorari quashing the order dated 10.2.2004 passed by the Land Tribunal, Kunigal, vide Annexure-A and to declare that the petitioners are entitled to half share in the property in question and to hold fresh enquiry in the matter. It is the case of the petitioners that one C. Muddaiah, the father of respondents 3 to 8 and father-in-law of respondent No. 9, has filed Form No. 7 on 31.12.1974 for grant of occupancy rights in respect of the property bearing Survey No. 15/1, measuring 3 acres, situated at Kachonahally village, Amrathoor Hobli, Kunigal Taluk, Tumkur District. It appears, the father of the petitioners is also said to have filed an application in Form No. 7 on 29.6.1977 claiming half share in the very property bearing No. 15/1 of Kachonahally village, Kunigal Taluk. When the Land Tribunal issued notices in Form No. 9, the landlords have filed Writ Petition No. 4071/1975. The writ petition came to be disposed of by this Court on 19th January 1976, directing the Land Tribunal to issue fresh notice to the landlords and thereafter to consider the matter in accordance with law. The Tribunal thereafter has taken up the matter for consideration along with the application filed by one Channaiah-the father of the petitioners as per the directions issued by this Court. Channaiah was reported to be dead and the petitioners were brought on record. The Land Tribunal held further enquiry in the matter. The respondents have produced Pahani extracts from 1969-70 to 2000-01, which were marked at Exs. P-3 to P-11 and apart from that, some Geni chits were also produced. The grievance of the petitioners is that, in spite of the documents produced, the Land Tribunal, illegally passed the impugned order, granting occupancy rights in favour of father of contesting respondents in Survey No. 15/1, to the entire extent of 3 acres, including 7 guntas kharab, which is a geni land granted to the father of contesting respondents. Of course, despite service of notice, these petitioners are said to have not appeared before the Land Tribunal and thus, the Land Tribunal holding that the petitioners are not interested in prosecuting the matter, passed the impugned order. At this point of time, the learned counsel appearing for the petitioners submitted that petitioners are also cultivating the land to the extent of half share in the property in question and without considering their grievance, the impugned order is passed by the Land Tribunal, which is an ex parte order. The petitioners have produced the copy of the order sheet vide Annexure-''B'' in this regard.

From the records it is seen that the proceedings were initiated in the year 1975-76. On report of the death of father of the petitioners, efforts were made to secure the presence of the petitioners and accordingly, they were brought on record. Thereafter, it appears, during the pendency of the matter, the second applicant-Channaiah died and his legal representatives viz., C. Kempaiah, K.C. Chandrashekaraiah, K.C. Rajanna and K.C. Shivaraju, were brought on record, and all of them have given their power of attorney to K.C. Shivaraju. The said K.C. Shivaraju, GPA holder, appeared before the Land Tribunal on 3.5.2003. He was given sufficient opportunity to engage a counsel. Thereafter, on subsequent dates, K.C. Shivaraju remained absent. The petitioners, who are represented by their brother K.C. Shivaraju-GPA holder, did not engage an advocate to represent their case nor contested the matter for more than a year.

The case put forth by the contesting respondents is that, there was a partition on 6th February 1966 and as per the Partition Deed, the property in question fell to the share of C. Muddaiah-father of contesting respondents. C. Muddaiah filed Form No. 7 claiming occupancy rights in respect of the property in question and the same came to be allowed. According to them, it is only an after thought that the father of the petitioners has filed an application claiming occupancy rights in respect of half of his share in the property in question. The learned counsel appearing for the contesting respondents submit that since already the application filed by the father of the contesting respondents is allowed at the earliest point of time, that too by virtue of Partition Deed dated 6.2.1966, the petitioners were never interested in prosecuting the matter. But of late, they came up with a contention that they have not been heard in the matter. Further, the father of the petitioners herein has filed Form No. 7 on 29.6.1977, whereas partition took place between father of petitioners and the father of the contesting respondents in the year 1966. Accordingly, after verification of the records, the Land Tribunal has passed the order and hence, no interference is called for.

The learned Addl. Government Advocate also submits that the Land Tribunal has given sufficient opportunity to the petitioners up to 29.7.2003, but they have not made any efforts to contest the matter because they very well knew that they have no right over the property in question. It appears, though notices have been served on the petitioners way back in the year 1994 itself, on one or the other reason, they have not availed the opportunity to present before the Land Tribunal. As rightly pointed out by the contesting respondents, petitioners were aware of the fact that they are not entitled to any rights and as such, they have avoided to contest the matter before the Land Tribunal. In the fact situation, the appearance of the petitioners and their participation in the enquiry is not there for more than ten years and thus there is no illegality in the impugned order passed by the Land Tribunal.

Accordingly, Writ Petition is disposed of.