Subhash Chandra vs Land Tribunal, Dharwar

A.S. Bopanna, J.—The petitioners in both these petitions are assailing the same order dated 06.01.2004 passed in Case No. KLR/Kelageri/SR/35 by the Land Tribunal, Dharwad. The petitioners in W.P.No.2260/2004 are assailing the said order to the extent wherein a part of their claim for occupancy right is rejected. The petitioner in W.P.No.26143/2005 on the other hand is assailing the same order where under a part of the claim has been considered and occupancy right is granted in favour of the petitioners in W.P.No.2260/2004.

Since the array of parties is different in these petitions, the petitioners in W.P.No.2260/ 2004 would be referred to as the ''tenants'' while the petitioner in W.P.No.26143/2005 will be referred to as the ''landlord'' for the purpose of convenience and clarity.

The tenants filed the Form No. 7 claiming occupancy rights under the provisions of the Karnataka Land Reforms Act, 1961, (''the Act'' for short) in respect of the property bearing Block No. 269, measuring 14 acres 36 guntas and Block No. 281 measuring 37 acres 02 guntas situate at Kelageri village, Dharwad. The Land Tribunal on considering the same by its order dated 23.04.1977 had granted the occupancy right in favour of the tenants. The landlord had questioned the same in W.P.No.36039/1982. This Court by the order dated 17.10.1985 had set aside the order and remanded for fresh consideration. On reconsideration, the Land Tribunal by the order dated 06.04.1993 had once again granted the occupancy right in favour of the tenants. The said order was again questioned before this Court in W.P.No.4935/1995. This Court by the order dated 31.07.1998 had set aside the order and remanded the matter for fresh consideration.

It is on such reconsideration for the second time, the impugned order dated 06.01.2004 is passed by the Land Tribunal. By the said order, the Tribunal has granted occupancy right in respect of an extent of 8 acres 36 guntas in Block No. 269 out of the total extent of 14 acres 36 guntas and an extent of 9 acres in Block No. 281 out of the total extent of 37 acres 2 guntas. The tenants are therefore aggrieved by the order whereby the remaining extent in Block Nos. 269 and 281 has not been granted to them. The landlords however contend that even the portion of the land granted by way of occupancy right is not justified since according to them the lands in question were never tenanted lands.

Heard the learned counsel for the parties and perused the petition papers including the records secured from the Land Tribunal which was made available by the learned Government Advocate at the time of hearing.

In the light of the contentions, a perusal of the order dated 06.01.2004 passed by the Land Tribunal would indicate that the same is no doubt exhaustive. Though reference is made to the statement recorded and the affidavit filed before the Tribunal, the ultimate decision taken by the Land Tribunal is based on the spot verification that has been conducted and the Mahazar that had been drawn. As against the consistent stand of the tenants that the lands in question were being cultivated by the father of the tenants (who are the present petitioners) for more than 30-40 years as on the appointed date and after his life time, the petitioner-tenants with their mother cultivated the property, the stand adopted on behalf of the landlord appears to be wavering from time to time. Initially, the Power of Attorney holder on behalf of the landlords, named Gangadhara Dattatraya Satavalikar had appeared and had indicated the consent of the landlord for grant of the occupancy right. Accordingly, the occupancy right had been granted. However, the landlord through her Power of Attorney holder named Raosab Krishtappa Desai had filed W.P.No.36039/1982 disputing the position since the consenting statement could not have been made without serving notice on the landlord. It is in that view, the order was set aside and the matter was remitted.

On the second occasion when it was granted, the contention was that the Power of Attorney holder of the landlord was not well, yet the Land Tribunal had refused the adjournment and had proceeded to pass the order which amounted to denial of opportunity. Hence in order to provide an opportunity, the order was set aside in W.P.No.4935/1995. The said order was passed on 31.07.1998. It is after the said remand, the present Power of Attorney holder Col.S.N. Pendharkar has entered the arena and is also seeking to contend that in view of the Gallantry Award given to him for his service in the Army, the landlord being impressed by the same has executed a Will dated 19.12.1972 in his favour and as such, is also contending that the provisions of the Act cannot be made applicable to the lands in question as he is the beneficiary of the said lands. In that background, the said Col. S.N. Pendharkar has filed the affidavit/statement before the Tribunal in the year 2003. Therefore, the case will have to be considered keeping in view the statement being made by a person holding a Power of Attorney and seeking the benefit under the Will of the landlord as against the statements made by the tenants who claim to have been in cultivation of the lands having inherited from their father, though they were minors as on 01.03.1974 i.e., the appointed date.

Learned counsel for the landlord at the outset contended that the very application in Form No. 7 ought not have been entertained by the Land Tribunal since admittedly the claimants in the application were minors and as such there cannot be a contract of tenancy. In that regard, the learned counsel has relied on the decision in the case of United India Insurance Co. Ltd. & another v. Samir Chandra Chaudary 1(2005) 5 SCC 784] : (2005 AIR SCW 5195) wherein it is held that an admission made cannot be resiled and in that light, it is pointed out that the claimants in their cross examination have admitted that they are minors. In that background, the decision in the case of Shivaramu v. Gangamma (LAWS (KAR)-2003-1-79): (2005 AIR SCW 5195) is relied to contend that the view of the Appellate Authority that a tenant being a minor was not entitled to contract of tenancy is upheld by this Court and as such the application filed by the claimants herein also cannot be entertained.

Having noticed the said contention as also the decisions cited, I have perused the papers and the fact situation in the instant case. There can be no dispute to the fact that as on the date of filing the Form No. 7 the tenants were minors and the application was filed by being represented through their natural guardian-mother. However, that by itself cannot be a disqualification in the instant factual matrix. In the decision cited, the applicant had contended that he himself was cultivating the lands and in that regard, had claimed the occupancy rights. While considering such claim the wavering evidence given by him was noticed by the Appellate Authority and it was observed that the petitioner himself was not sure when he was cultivating the property. In that background, it was concluded that if his evidence is taken into consideration, he would have been a minor and could not have been a tenant. On the other hand, in the instant case that is not the position. The definite case of the tenants from the very beginning is that their father was the tenant in cultivation for nearly 40 years and thereafter their mother was cultivating with whom they were residing and having inherited the right, they have filed the application being represented by their mother as the natural guardian. On the legal aspect, there can be no quarrel that though a minor cannot enter into a contract in individual capacity, can do so if represented by a guardian. Therefore, in the instant case, the application filed on behalf of the tenants is valid and when they tendered evidence before the Tribunal they had attained the age of majority, but have claimed tenancy through their father. Hence, the contention in that regard cannot be accepted.

The learned counsel for the landlord has next relied on the decision in the case of Bhimappa Channappa Kapali(D) by L.Rs. v. Bhimappa Satyappa Kamagouda (D) L.Rs. & Ors. (LAWS (SC)-2012-10-107 to contend that the presumption regarding the revenue entries can be raised only if it is shown that the entries were made pursuant to lawful mutation orders after following the due procedure. It is contended that in the absence of the same, the entries contained in the Record of Rights in the instant case cannot be accepted. In that regard, a perusal of the records of the Land Tribunal at pages 135 to 145 discloses that the revenue entries have been made as early as 1966-67 and that too after an order made prior to the same. Neither the original owner or the legal heirs have assailed the said entries in the appropriate forum. In such situation, the person claiming to be the Power of Attorney holder or claiming under the Will, at this stage cannot raise an off the cuff contention in the present proceedings. It was open for the representative of the landlord to tender such evidence or summon the documents before the Tribunal to establish that the documents relied on behalf of the tenant are not genuine entries in order to rebut the presumption. As such a vague contention at this stage cannot be countenanced.

That apart, as against such claim of tenancy by the tenants, the contention of the landlord is not certain and definite. As noticed, the stand has been shifting from time to time. Taking note of the earlier contentions, the Land Tribunal had granted the occupancy rights for the entire extent of the land by the orders dated 23.04.1977 and 06.04.1993. Though the same were set aside by this Court, it was only on the technical ground that notice had not been issued and opportunity by adjourning the matter had not been granted. Thereafter, the evidence has been tendered by the tenants as P.Ws.1 and 2. The neighbouring land owner was examined as PW-3, who has spoken to the fact that the tenants have been cultivating the lands in question. The Land Tribunal in its order has taken note of the evidence in detail.

As against the evidence on behalf of the tenants, Col. S.N. Pendharkar has filed the affidavit dated 15.12.2003 after he has entered the scene during that year. He claims to be the Power of Attorney holder of the legal rep-resentatives of the landlord and by himself claims right to the property under the Will dated 19.12.1972 said to have been executed by late Umabai Kirloskar, the wife of the original landlord. It is claimed by him that he, as a defence personnel was awarded the Gallantry'' Award which was announced on 17.12.1972 and as such, in appreciation of the same, the Will was executed and the property was given to him.

Such contention has been raised with a view to claim certain privileges in the light of exemptions provided from the applicability of the Land Reforms Act to the land belonging to service personnel and in that regard reference is made to Section 107 of the Act. However, the fallacy in such contention is very evident on the face of it and it creates an impression that it is now being contended so as a ploy to wrest the property since the original landlord and the legal representative seem to be caught in their own web of admitting the tenancy. At the first instance, the Power of Attorney holder had indicated the consent of the landlord to grant the occupancy right but had wriggled out by filing the writ petition contending that such consent had been recorded by the Land Tribunal without issuing notice. The Land Tribunal records at page 285 indicate that Sri. R.S. Kirloskar, the adopted son of the landlord had written a letter dated 11.05.1981, wherein it is stated that the tenant has sold the usufructs and as such has claimed the compensation. The documents relied on by the tenants also indicate that the landlord had filed an application under Section 14 (7) of the Act and by the order dated 28.02.1969 it is held as non-resumable land and the tenants herein are referred as the tenants. Further, the order dated 28.08.1975 indicates that the landlord filed an application against the tenants herein for determination of the rents, which was ordered and the same was paid under the receipt dated 01.12.1975. The copies of the same are at Annexures-C to E in W.P.No.2260/2004.

In the above backdrop, a perusal of the affidavit of Col. S.N. Pendharkar would indicate that the Gallantry Award was announced on 17.12,1972 and Smt. Umabai executed the Will on 19.12.1972. However, he states that the Will came to his knowledge only recently before filing the affidavit and in any event, the application in that regard was filed only on 22.08.2002. If actually the bequeath was being made in recognition of his achievement, it is difficult to digest as to why she would not have told him during her lifetime itself about the same so that he could take benefit of it immediately after her death. The said Umabai died on 10.06.1977 and it is hard to believe that a Will if in fact was left behind her and that too with such intention, it will come to the knowledge of the beneficiary only after 25 years. This will indicate that such contention is being urged only to get the lands out of the purview of the Act so as to retrieve the same, even if it is held to be tenanted.

However, on the legal aspect even if the Will is accepted as genuine also, the same cannot make a difference to the claim of the tenants. As noticed, though the Will is claimed to be dated 19.12.1972, the same can take effect only on the death of the Testator. In the instant case, the date of death is 10.06.1977 i.e., after the appointed date viz., 01.03.1974. As on the appointed date, the tenanted land will vest in the Government in terms of Section 44 of the Act. As such even before the alleged Will in the instant case became operative, the lands in question had vested under the Act. That position can be negative only if it is established that the land was never tenanted. As already indicated, in view of other material to that effect, the theory of Will is put forth at this juncture. In any event, to one portion of the land, the Land Tribunal has accepted the tenancy and to that extent, the same does not call for interference.

The question therefore is as to whether the method adopted by the Land Tribunal to deny the remaining portion is justified. As seen, the Land Tribunal has entirely relied on the spot inspection that was conducted. Certainly no fault could be found if the spot inspection is held and the mahazar drawn therein is considered with the other materials and a decision is taken. In the instant case, the Land Tribunal has declined the occupancy right to a portion of the land by only assuming the age of the mango trees. That by itself cannot be the basis. Firstly, no concrete material was relied to compute the age of the trees. Secondly, even if the original landlord had planted the trees, if subsequently he had given the tenancy to the father of the petitioner-tenants for cultivation, it would still qualify as tenanted land and only because some mango trees are there, it will not take away status of the land unless it is also shown in the records. Therefore, this aspect of the matter will require detailed reconsideration by the Land Tribunal. Further, in respect of certain other portions which have been denied, based on the spot inspection it has been stated that it is fallow and where there is natural growth of grass. The cultivation is to be with reference to 01.03.1974 or immediately prior and not as it is at this stage. Therefore, local enquiries are also to be made and not to conclude only on the basis of what is visible.

On this aspect of the matter, it is to be noticed that though the Land Tribunal had taken note of the contention on behalf of the tenants about the order that the land cannot be resumed was passed and also the fixation of rent was made at the instance of the landlord and the rent was paid, there is no consideration of that aspect one way or the other. Hence, in that background, the Land Tribunal while keeping in view the spot inspection report will have to also take note of that aspect, consider the veracity of the said proceedings and in that fight, the extent of land involved in that proceedings will have to be taken into consideration and thereafter come to a conclusion with regard to the remaining extent. It is only if such consideration is made, the Land Tribunal will be in a position to come to the conclusion about the actual extent over which the occupancy right is to be considered when the fact that they were the tenants under the landlords herein is established and they have been held entitled for occupancy rights in respect of one portion of the land.

To enable such consideration, the portion of the order denying occupancy to a portion of the land alone is to be set aside and the other portion of the order granting occupancy right to the extent of 8 acres 36 guntas in Block No. 269 and 9 acres in Block No. 281 shall stand confirmed.

For all the afore stated reasons, the following:

ORDER

(i) The W.F.No.2260/2004 is allowed in part.

(ii) The W.P.No.26143/2005 is dismissed.

(iii) Consequently, the order dated 06.01.2004 passed in Case No. KLR/Kelageri/SR/35 by the Land Tribunal to the extent of rejection of portions of the land in Block Nos. 269 and 281, Kelageri Village, Dharwad, is set aside and remanded to the Land Tribunal for reconsideration limited to that extent.

(iv) Insofar as the grant of 8 acres 36 guntas in Block No. 269 and 9 acres in Block No. 281 by way of occupancy right under the said order dated 06.01.2004, the same shall stand confirmed.

(v) Parties to bear their own costs.