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Venkanna Vs. Fakirappa and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Judge
Reported in1975(2)KarLJ433
ActsKarnataka Land Reforms Act, 1961 - Sections 48-A, 91(2), 91(3) and 116(2)
AppellantVenkanna
RespondentFakirappa and ors.
Appellant AdvocateK.S. Desai, Adv.
Respondent AdvocateKadidal Manjappa, Adv.
Excerpt:
- indian succession act (39 of 1925), section 59 & 63: [a.n.venugopala gowda, j] proof of execution of will held, when the genuineness /execution of the will is questioned, the due execution has to be proved by the person who produces the document to make or establish any claim. hence, to prove the execution of the will, the examination of at least one attesting witness is necessary. however, though a will, ordinarily must be proved, keeping in view the provisions of section 63 of the indian succession act and section 68 of the evidence act, in the event of the unavailability of the attesting witnesses on account of death or other similar circumstances being brought on record, the proof of execution of the will and attestation can be considered in the relaxed manner by having recourse..........dispossessed the first respondent in 1967. the first respondent filed an application before the land tribunal, koppal in 1968 stating that he had been dispossessed by the petitioner illegally and praying that the tribunal might direct redelivery of the land to him. the said application was made under section 41 of the karnataka land reforms act (hereinafter referred to as the 'act' ) as it stood then. the land tribunal rejected his application by its order dated 30-3-1972. the appeal filed by the first respondent against that order before the district judge, raichur, was dismissed on 20-9-1972. against the order of the district judge, the first respondent preferred a revision petition before this court in c. r. p, no. 265 of 1973 (kant.). the said revision petition was allowed by this.....
Judgment:
ORDER

1. The dispute involved in this writ petition relates to a land bearing Sy. No. 51 (old) 63 (new) situated in Hosahalli village, Koppal Taluk. The said land originally belonged to one Panumanthappa son of Anateppa Mulimani. The petitioner purchased it in the year 1965. It had been leased in favour of the first respondent and he was in possession of it. The petitioner claiming to be the purchaser of the land dispossessed the first respondent in 1967. The first respondent filed an application before the Land Tribunal, Koppal in 1968 stating that he had been dispossessed by the petitioner illegally and praying that the Tribunal might direct redelivery of the land to him. The said application was made under Section 41 of the Karnataka Land Reforms Act (hereinafter referred to as the 'Act' ) as it stood then. The Land Tribunal rejected his application by its order dated 30-3-1972. The appeal filed by the first respondent against that order before the District Judge, Raichur, was dismissed on 20-9-1972. Against the order of the District Judge, the first respondent preferred a revision petition before this Court in C. R. P, No. 265 of 1973 (Kant.). The said revision petition was allowed by this Court on 4th January, 1974. By that order, the High Court declared that the 1st respondent was a tenant of the land when he was forcibly dispossessed and directed the petitioner to put the first respondent in possession of it. Against that order, the petitioner filed a Special Leave Petition under Article 136 of the Constitution before the Supreme Court in S. L. P. (Civil) No. 755 of 1974 (SC). That petition was allowed to be withdrawn and dismissed by the Supreme Court on 18-12-1974. Thereafter, on 5-3-1975 the first respondent applied to the Deputy Commissioner, Raichur, to execute the order passed by this Court and to put him in possession of the land in question. The Deputy Commissioner forwarded the application to the Tahsildar, Koppal, for necessary action. The Tahsildar registered the said application and proceeded to take action. On 5-3-1975 the first respondent made an application directly to the Tahsildar under Section 116(2) of the Act to execute the order passed by the High Court and to put him in possession of the property.

2. Section 116(2) of the Act reads as follows:

'An order of the Tribunal or other authority awarding possession or restoring the possession or use of any land shall be executed in the same manner as an order passed by a Revenue Officer under the Mysore Land Revenue Act, 1964.'

3. In this writ petition the petitioner has questioned the order of the Deputy Commissioner forwarding the application to the Tahsildar and the action taken by the Tahsildar on the application made by the first respondent on 5-3-1975.

4. In support of the writ petition, Sri K. S. Desai, learned counsel for the petitioner, contended that on the coming into force of the Karnataka Land Reforms (Amendment) Act I of 1974 the order passed by the High Court became inexecutable. Reliance was placed by the learned counsel for the petitioner on subsection (3) of Section 91 of the Act I of 1974. It reads as follows:

'(3) All applications or proceedings other then those referred to in sub-section (2) which are required to be decided or disposed of by the Tahsildar or the Tribunal specified in the principal Act as amended by this Act -

(a) pending before any Munsiff immediately before the date of commencement of this Act shall with effect from that date stand transferred to the Tahsildar or the Tribunal, as the case may be and shall be disposed of by him or it as if they had been instituted or commenced before him or it;

(b) having been disposed of by the Munsiff Court, are pending in appeal or revision, such appeal or revision shall abate without prejudice to the question involved in the applications or proceedings giving rise to such appeal or revision, being commenced afresh before the Tahsildar or the Tribunal as the case may be, as if the amendments made by this Act to the principal Act were in force at the time the right for making such application or commencing such proceedings accrued.'

The above sub-section (3) of Section 91 was introduced by the Karnataka Land Reforms (Second Amendment and Miscellaneous Provisions) Act, 1974, Karnataka Act No. 31 of 1974 in substitution of the Original sub-section (3) of Section 91 of the Karnataka Act No. I of 1974.

5. Sub-section (3) of Section 91 which was in force when the first respondent made his application before the Tahsildar does not state that all orders and decrees which had been made prior to the coming into force the Act I of 1974 would become void and unenforceable. It only provides that where any proceedings other than those referred in Section 91 (2) are pending before any Munsiff they shall stand transferred to the Tahsildar or the Tribunal as the case may be as required by clause (a) of Section 91 (3) and where having been disposed of by the Munsiff are pending in appeal or revision such appeal or revision shall abate without prejudice to the question involved being agitated before the Tahsildar or the Tribunal again as stated in clause (b) of Section 91 (3). The appeal and revision referred to in clause (b) are those before the District Judge and the High Court as the case may be. In the instant case no appeal or revision was pending before the District Judge or High Court on 3-8-1974 on which date Act 31 of 1974 is deemed to have come into force.

6. The petitioner cannot derive any assistance from the decision of this Court in Kadappa Parappa v. Bademiya Hasanmiya, 1975 (1) Kant LJ 369 in support of his contention that the orders already passed by the High Court in revision could not be enforced under Section 116(2) of the Act. That decision was rendered in a revision petition pending before the High Court. According to that decision, the effect of Section 91 (3) as substituted by Act 31 of 1974 is that all applications and proceedings other than those falling under sub-section (2) of Section 91 pending before any Munsiff Court immediately before the date of commencement of the amendment Act stand transferred to the Tahsildar or the Tribunal as the case may be, and where matters have been disposed of by the Munsiff Court which are pending in appeal or revision such appeal or revision shall abate without prejudice to the question involved in the applications or proceedings giving rise to such appeal or re vision, being commenced afresh before the Tahsildar or the Tribunal as the case may be, as if the amendments made by this Act to the Principal Act were in force at the time the right for making such applications or commencing such proceedings accrued. Since the revision petition had been disposed of by this Court on 4-1-1974, there was no pending proceeding before the High Court which could abate. Section 91 (3) does not in any way invalidate the orders which had become final. It only deals with proceedings pending before the Munsiff and the District Judge and in the High Court in revision but not under Articles 226 and 227 of the Constitution.

7. It was however contended that the special leave petition under Article 136 of the Constitution was pending before the Supreme Court on the relevant date and by reason of Section 91 (3) (b) it had to be held that the proceedings pending before the Supreme Court also abated. It is difficult to subscribe to the above view for the following reasons. First, what was pending before the Supreme Court was not an appeal but only a petition for special leave to appeal under Article 136. Secondly the State Legislature could not pass any law which would affect the jurisdiction of the Supreme Court under Article 136 of the Constitution. It cannot make a law declaring that a matter pending before the Supreme Court under Article 136 should be treated as having abated. It is beyond its legislative competence to do so since under Entry 65 of List II of the Seventh Schedule of the Constitution the State Legislature can make a law affecting the jurisdiction and powers of all Courts except the Supreme Court, with respect to any of the matters in that List. The Supreme Court by its order dated 18-12-1974 permitted the petitioner to withdraw the petition. If really the petition had abated the question of permitting the petitioner to withdraw the petition would not have arisen. Hence, there is no substance in the contention urged on behalf of the petitioner that by reason of pendency of a special leave petition before the Supreme Court, the entire proceedings commencing with the proceedings instituted before the Tribunal and ending with the proceedings before the Supreme Court under Article 136 would become void and inoperative. It is therefore rejected. I hold that the order passed by this Court in C. R. P. No. 265 of 1973 (Kant) on 4-1-1974 remains unaffected and is All enforceable under Section 116(2).

8. Sub-section (2) of Section 91 of Act 1 of 1974 to which also my attention was drawn by the Counsel for the petitioner is not applicable to this case as it only refers to applications for resumption made by landlords.

9. It was next contended by Sri K. S. Desai, that before taking action under Section 116(2) of the Act, the Tahsildar has to follow the prescribed procedure. I have no doubt that the Tahsildar before dispossessing the petitioner would follow the appropriate procedure. Hence no direction need be issued in this regard.

10. It was lastly argued on behalf of the petitioner that the proceedings before the Tahsildar under Section 116(2) of the Act cannot be continued by the first respondent because he has made an application under Section 48-A of the Act before the Land Tribunal for treating him as the occupant of the land in question. There is very little substance in this contention also. The purposes of Section 116(2) and Section 48-A are entirely different. Section 116(2) is intended for the execution of the orders passed by any authority under the Act and Section 48-A is intended for determining whether the person is a tenant entitled to be registered as an occupant.

11. In the result, this writ petition fails and is dismissed with costs. Advocate's fee Rs. 100/-.

12. Petition dismissed.


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