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Venkappa Hunashikatti and ors. Vs. State of Karnataka and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberWrit Petition Nos. 31479 and 33646 to 33648 of 2004
Judge
Reported in2005(2)KarLJ201
ActsKarnataka Land Reforms Act, 1961 - Sections 48
AppellantVenkappa Hunashikatti and ors.
RespondentState of Karnataka and ors.
Appellant AdvocateMrutyunjay Tata Bangi, Adv. in W.P. No. 31479 of 2004 and ;Rajashekar Seeri, Adv. in W.P. Nos. 33646 to 33648 of 2004
Respondent AdvocateRatna N. Shivayogimath, High Court Government Pleader for Common Respondents-1 and 2 and ;S.S. Patil, Adv. for Common Respondent-3
DispositionPetition allowed
Excerpt:
.....filing of the writ petition was very well-within the knowledge of the petitioner as well as his father, and that his father was represented by an advocate in the earlier proceedings. later individual notices were issued by the tribunal and the same was refused by the petitioner as well as by his mother. essentially the petitioners attack the impugned order on the ground of 'natural justice'.even otherwise, they say that an opportunity was denied to them, and they further say that they have a good case on merits. i am satisfied that a reasonable opportunity has been denied to the petitioner despite serious objection by sri patil. in the given circumstances and on the facts of this case, i am satisfied that the matter requires re-examination in the light of the death of the opposite..........carefully perused the material on record.9. material on record would reveal that the petitioner's father filed an application in form 7 seeking occupancy rights. he was successful on the earlier occasion. that was successfully challenged by the respondents. matter was remanded in terms of the order passed in w.p. no. 13992 of 1996. in the said order, it is noticed that the parties were represented before the court and that thereafter directed the parties to appear on 2-11-1998. this court has further directed for speedy disposal of the case. thereafter, in terms of the material available on record, father of the petitioner, namely somappa venkappa hunasikatti (respondent 3 in w.p. no. 13992 of 1996), died on 18-2-2003. the impugned order is passed on 15-6-2004. on the date of order,.....
Judgment:
ORDER

R. Gururajan, J.

1. Writ Petition No. 31479 of 2004 is filed by Venkappa Hunasikatti challenging the order of the Land Tribunal dated 15-6-2004 at Annexure-C in the case on hand. Writ Petition Nos. 33646 to 33648 of 2004 are filed by Suresh Ambiger and two others challenging this very order. Both the petitions are taken up together for disposal.

2. Facts in W.P. No. 31479 of 2004: Petitioner's father Somappa Hunasikatti filed Form 7 before the Land Tribunal, Bilagi in respect of the lands bearing Sy. Nos. 100, 101, 102, 103, 104 and 105 of Kolur Village in Bilagi Taluk, Bagalkot District. The Tribunal by its order dated 6-9-1975 allowed the application and granted occupancy rights in favour of Somappa. Necessary entries have been carried out in the revenue register in respect of the lands. As per conditions of grant of occupancy rights in respect of the lands, lands could not be sold to any one within a period of 15 years from the date of conferment of occupancy rights in favour of the tenant. It is stated that after the period of non-alienation i.e., after a lapse of 23 years from the date of grant, the lands have been sold in favour of three persons and they are in possession as on today. Name of the petitioner's father was entered in respect of the said lands. The third respondent claims to be the son of Govindappa Hunasikatti who is the brother of the petitioner's father. In 1995 he applied to the Village Accountant seeking to modify the mutation entry and to enter his name along with the names of legal representatives of the deceased Govindappa. The Village Accountant colluded with him in the matter. Appeal was filed by the petitioner's father and the Assistant Commissioner set aside the order. Third respondent filed a Writ Petition No. 13992 of 1996 challenging the order dated 6-9-1975. This Court accepted the writ petition and remanded the matter for fresh consideration. After remand the Tribunal took up the matter on its file. Notice was issued to the petitioner's father to appear before the Tribunal. The Tribunal recorded that the said notice has been refused to be received and therefore the Tribunal proceeded to pass an order in favour of the third respondent without considering the factual aspects of the matter. According to the petitioner, petitioner's father died in February 2003. In the circumstances, he says that the entire order requires reconsideration.

3. Respondents entered appearance and a detailed statement of objections is filed by the third respondent. In the objections it is stated that the father of the petitioner filed Form 7 claiming occupancy rights in respect of the lands in question. It is not filed in his individual capacity. It was filed as Karta of the family. Respondent 3 is the grandson of Venkappa Hunasikatti who had two sons, namely Govindappa and Somappa. Petitioner is the son of Somappa and respondent 3 is the son of Govindappa. After the death of their grandfather in 1973, the name of the father of the petitioner and respondent 3 came to be mutated in the revenue entries. Respondent 3 was minor at that time. Even though occupancy rights were granted in the name of the father of the petitioner, it was enured to the benefit of respondent 3. Respondent 3 states that filing of the writ petition was very well-within the knowledge of the petitioner as well as his father, and that his father was represented by an Advocate in the earlier proceedings. This Court fixed the date for appearance of the parties and the parties appeared before the Tribunal. There was no sitting of the Tribunal. Later individual notices were issued by the Tribunal and the same was refused by the petitioner as well as by his mother. A Panchanama and the report made by the Village would reflect the proceedings of the Land Tribunal. It is also stated that during the trial of the case, father of the petitioner died. An application was also filed by respondent 3 reporting the death of the petitioner's father and person who were the legal representatives to be brought on record. Same is reflected in the proceedings of the Tribunal. Petitioner's mother appeared before the Land Tribunal on 14-11-2003 and signed the order sheet for having attended the Land Tribunal. With these reasons, respondents want the petition to be dismissed.

4. Writ Petition Nos. 33646 to 33648 of 2004 are filed, as I mentioned earlier, by Suresh Ambiger and two others. Somappa Venkappa Hunasikatti filed Form 7 seeking occupancy rights. The Tribunal allowed occupancy rights. The revenue entries were made in the light of occupancy rights. After the period of non-alienation i.e., after lapse of 23 years all the three petitioners purchased the lands in question. They have made same or similar averments as in the connected writ petition.

5. Heard the learned Counsels for the parties and perused the material on record.

6. Learned Counsel for the petitioner would invite my attention to the material facts to say that the impugned order is passed against a dead person. Even otherwise, no notice as such has been served on the petitioners. Essentially the petitioners attack the impugned order on the ground of 'natural justice'. Even otherwise, they say that an opportunity was denied to them, and they further say that they have a good case on merits.

7. Per contra, Sri Patil, learned Counsel for respondent 3 was at great pains to point out to me that the arguments of natural justice is not available to the petitioner. He says that he has filed an application reporting the death of the petitioner's father and thereafter his mother appeared voluntarily, and that therefore it cannot be said that there is no notice at all. He says that even otherwise his client is entitled for a right in the matter.

8. After hearing the learned Counsels for the parties, I have carefully perused the material on record.

9. Material on record would reveal that the petitioner's father filed an application in Form 7 seeking occupancy rights. He was successful on the earlier occasion. That was successfully challenged by the respondents. Matter was remanded in terms of the order passed in W.P. No. 13992 of 1996. In the said order, it is noticed that the parties were represented before the Court and that thereafter directed the parties to appear on 2-11-1998. This Court has further directed for speedy disposal of the case. Thereafter, in terms of the material available on record, father of the petitioner, namely Somappa Venkappa Hunasikatti (respondent 3 in W.P. No. 13992 of 1996), died on 18-2-2003. The impugned order is passed on 15-6-2004. On the date of order, admittedly respondent 3 therein was no more. Even in the impugned order the dead person is shown as respondent. Even in the body of the order it is stated that in spite of several opportunities opposite party was not present. However, it is stated in the very same order that the opposite party, namely the present petitioner's father died and no documents are produced. The Tribunal in my view notices the death of the opposite party and after noticing the same, the Tribunal could not have stated that he was absent. A person cannot be expected to be present after his death. Unfortunately, this aspect of the matter has not been properly considered by the Tribunal. Right course probably would have been for the Tribunal to bring on record the legal representatives of the deceased respondent in the matter. In fact, in terms of the submission of Sri Patil, learned Counsel for respondent 3, an application was filed on 4-11-2003 and no orders as such has been passed on the said application. However, notices seems to have been sent to the wife and she has, according to the respondents, chosen to enter appearance. At any rate, in the light of the Tribunal's opinion, after noticing the death of the opposite party and after noticing his absence, it ought to have taken the proceedings against the legal representatives by way of consideration of the application filed by the respondents in the matter. No such attempt is made in the case on hand. I am satisfied that a reasonable opportunity has been denied to the petitioner despite serious objection by Sri Patil. Filing of an application is different from consideration of such application by the Tribunal. No consideration of the said application has been shown in the case on hand. Therefore, petitioner's Counsel is right in his submission with regard to denial of opportunity.

10. I also see from the earlier order made by this Court that this Court noticed delay in the matter. This Court in para 3 notices that the parties have to establish with regard to their share and the Tribunal has to examine the factum of possession and the relevant aspects of the case and to re-decide the limited issue. Moreover, in the case on hand, there are subsequent purchases by the petitioners in W.P. Nos. 33646 to 33648 of 2004. All these aspects require factual determination. In the given circumstances and on the facts of this case, I am satisfied that the matter requires re-examination in the light of the death of the opposite party i.e., petitioner's father and also the subsequent sale.

11. In these circumstances, these petitions are allowed and the impugned order is set aside. Tribunal is directed to take on record the application filed by the contesting respondent on 4-11-1998 and allow the said application and bring the legal representatives of the deceased-Somappa Hunasikatti on record as party respondent/s and also in the connected petitions in the light of the subsequent sale in favour of the petitioners in W.P. Nos. 33646 to 33648 of 2004. Parties are directed to appear before the Tribunal without waiting for any notice on 24-1-2005. Learned Counsels for the parties are directed to inform their respective parties with regard to posting of the case before the Tribunal. Learned Government Pleader is directed to inform the Tribunal with regard to posting of the case. Parties are at liberty to file additional pleadings/evidence, both oral and documentary in accordance with law before the Tribunal. Tribunal is directed to complete the proceedings within six months from 24-1-2005 and pass a reasoned order after hearing the parties in accordance with law. No costs.

Office is directed to send the records forthwith.


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