Rama and Others vs H. Bylappa, The State of Karnataka and The Land Tribunal

K.L. Manjunath, J.—Legality and correctness of the order passed by the learned single Judge in WP Nos. 28580/12 and WP Nos. 28616-617/2012 dated 24.9.2012 is called in question in these appeals. According to the petition averments, petitioner had filed an application in Form No. 7 claiming occupancy rights in respect of 33-20 acres of land in Sy. No. 72 of Jarakabande Kaval, Yelahanka Hobli, Bangalore North (Addl.) Taluk and one Venkataramaiah and Huchamma @ Padmavathamma were also claiming as tenants in respect of the same land under one Soorappa. They had also filed an application for grant of occupancy rights of the land measuring 34-20 acres of Jarakbande Kaval, each of them had claimed 17-10 acres each. Writ petition was filed challenging the order passed by the tribunal in LRF 945, 1187 & 1418/74-75 dated 26.7.2012 as per Annexure-E to the writ petition granting occupancy rights in favour of the appellants herein rejecting the claim of the writ petition, on the ground that he had withdrawn the application filed by him by filing an affidavit before the tribunal. Contending that he had not made such an application withdrawing Form No. 7 filed by him and that his case has not been considered by the tribunal in accordance with law, he approached the learned single Judge with a request to set aside the order made by the tribunal as per Annexure-E confirming the occupancy rights in favour of the appellants and to re-consider the matter afresh by clubbing both the applications. It was contended by the appellants that writ petitioner had filed an application before the tribunal seeking permission to withdraw the application filed in Form No. 7, affidavit was notarized before the Notary Public and based on the same his claim was rejected and considering the case of the appellants on merits occupancy rights were granted for the entire extent of 34-20 acres. Therefore the appellants requested the learned single Judge to dismiss the writ petition. Learned single Judge had directed the Govt. Advocate to produce the records of the tribunal in order to verify whether any application was filed by the writ petitioner seeking permission of the tribunal to withdraw Form No. 7 or not. It was submitted by the learned Govt. Advocate that no such records were available. After hearing the counsel for the parties, learned single Judge has come to the conclusion that matter has to be remanded to the tribunal for fresh enquiry directing the tribunal to consider whether an application was filed by the writ petition under Order-23 Rule-1 of CPC or not and thereafter to consider the case of both the parties on merits and in accordance with law. This order is called in question in these appeals.

Having heard Mr. Nataraj, learned senior counsel appearing for the appellants and the Govt. Advocate, we do not see any error committed by the learned single Judge which calls for our interference for the following reasons: Admittedly two sets of Form No. 7 were filed claiming the very same land. Application filed by the writ petitioner Bylappa in Form No. 7 is not in dispute. Similarly, application filed by late Huchamma @ Padmavathamma and Venkataramaiah are not in dispute. Tribunal has granted occupancy rights Joy considering the application filed by Venkataramaiah and Huchamma @ Parvathamma as if they are the sole applicants before the tribunal on the ground that writ petitioner Bylappa has withdrawn his application by filing an application under Order-23 Rule-1 of CPC.

When the writ petitioner has contended before the learned single Judge that no such application to withdraw Form No. 7 was filed by him before the tribunal, when the learned single Judge by considering the records produced by the Government is of the view that no such records are available, in such circumstances if the learned single Judge has directed the tribunal to hold an enquiry on the application said to have been filed by the writ petitioner and thereafter to consider the case of both the parties in accordance with law, this court cannot interfere with such order in an intra court appeal. It is needless to state that if the tribunal is of the view that writ petitioner had in fact filed an application under Order-23 Rule-1 of CPC and such an application was considered by the tribunal in accordance with law and based on the same, Form No. 7 filed by the writ petitioner was permitted to be withdrawn, there is no necessity for the tribunal to re-consider the matter on the application filed by late Venkataramaiah and Huchamma @ Padmavathamma. Considering the applications of rival claimants, the point that arise is only if the writ petitioner had made an application under Order-23 Rule-1 of CPC. and such application had in fact been withdrawn by him. With the above observation, writ appeals are dismissed.