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V. Bhujanga Shetty Vs. the State of Karnataka, Rep. by Revenue Secretary and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 29122/1995
Judge
Reported inILR2005KAR6059; 2006(5)KarLJ443
ActsKarnataka Land Revenue Act, 1964 - Sections 128, 128(1) and 128(4); Karnataka Land Reforms Act, 1961- Sections 48A; Karnataka Land Reforms Rules, 1974 - Rules 17 and 19; Constitution of India - Article 227
AppellantV. Bhujanga Shetty
RespondentThe State of Karnataka, Rep. by Revenue Secretary and ors.
Appellant AdvocateA. Ananda Shetty, Adv.
Respondent AdvocateR. Kumar, HCGP for R-1 and R-2 and ;H. Jayakar Shetty, Adv. for R-3 (A, B, D,E, F, G) and R-3(c)
DispositionPetition allowed
Excerpt:
.....of the petitioner who has purchased the lands from the previous owner after the appointed date-the land tribunal has not issued notice to the petitioner before passing the impuged order- order of the land tribunal is liable to be setaside.;writ petition is allowed directing fresh enquiry. - section 13: [n.k.patil,j] application under order 26, rule 10a c.p.c.,- allegation of the husband/respondent against his wife/petitioner that she is suffering from paranoid schizophrenia - divorce petition by the husband/respondent rejection of petitioners application seeking experts second opinion challenge as to held, it is crystal clear from the relevant provisions of the act that, paranoid schizophrenia is one of the grounds but not the only ground for divorce. the said disease should be..........learned counsel for the petitioner has relied on the decision reported in govinda hari kulkarni v. land tribunal, hukkeri and anr., 1977 (2) k.lj 123 wherein it has been held that:'under the proviso to section 128 of the karnataka land revenue act, if rights of the parties are affected by means of a registered deed, such a party is exempted from making a report to the authority about the acquisition of rights. therefore, it was the duty of the authority to report, the matter to the department for making entry in the record of rights and index the lands. it is too much to contend that in the absence of any entry in the record of rights that title did not pass to the minor.'he relied on the decision reported in ramakantarao arshinigi v. land tribunal, michur and anr., 1983(1) klj 303.....
Judgment:
ORDER

K. Ramanna, J.

1. This writ petition is filed by the petitioner against the order dated 28.8.1980 passed by the Land Tribunal, Kundapura, in LRT- 11-160-TRI-10929/80-81 granting occupancy rights in favour of respondent No. 3-Shesha Shetty.

2. The brief facts leading to this case are that the petitioner herein said to be purchaser of the various items of lands bearing Sy. No. 95 and 96/3 from the original owners Manjamma, Chikkamma and Paddamma, who are the daughters of Smt. Y. Nagamma Shedthi in the year 1972. Because of prohibition for registration of immovable properties, the said three persons registered three separate sale deeds on 06.9.1974. It is the further case of the petitioner that respondent No. 3-Shesha Shetty who is none other than the father-in-law of the petitioner filed Form No. 7 on 21.12.1975 claiming occupancy rights of various items of the landed properties belonging to the petitioner and the petitioner's name has been shown in Column No. 1 of Form No. 7 at item No. 10 as Bhujanga Shetty. Though respondent No. 3 filed Form No. 7 including the name of the petitioner, the Tribunal has not issued any notice as contemplated under Rules 17 and 19 of the Karnataka Land Reforms Rules and without issuing notice either to the petitioner or to the general public passed the impugned order in favour of respondent No. 3, even though he was not at all cultivating the said land. The impugned order under challenge is not a speaking order, so also the finding recorded by the Tribunal that the land was vested to the Government clearly indicates that in order to defraud the rights of the petitioner, respondent No. 3 filed a false Form No. 7 and on the guise of that Form No. 7, the Tribunal had granted occupancy rights, which is illegal and incorrect.

It is the further case of the petitioner that the name of respondent No. 3 does not find a place in the records of rights register for the year 1967-1968. If he had been cultivating the land as a tenant under the previous owner, the Revenue Authorities ought to have shown his name in the records of rights register. Therefore, the impugned order under challenge is liable to be set aside.

3. Heard the Learned Counsel for the petitioner and the Learned Government Pleader appearing on behalf of respondent Nos. 1 and 2 and the Learned Counsel for respondent No. 3 and perused the records.

4. It is contended by the Learned Counsel for the petitioner that the impugned order under challenge was passed by the Tribunal without showing the name of the petitioner as the owner of the land, instead of that applicant-respondent No. 3 was shown as the owner of the land. The Tribunal has violated the Rules 17 and 19 of the Karnataka Land Reforms Rules and principles of natural justice.

5. In support of his contentions, the Learned Counsel for the petitioner has relied on the decision reported in Govinda Hari Kulkarni v. Land Tribunal, Hukkeri and Anr., 1977 (2) K.LJ 123 wherein it has been held that:

'Under the proviso to Section 128 of the Karnataka Land Revenue Act, if rights of the parties are affected by means of a registered deed, such a party is exempted from making a report to the authority about the acquisition of rights. Therefore, it was the duty of the authority to report, the matter to the Department for making entry in the record of rights and index the lands. It is too much to contend that in the absence of any entry in the record of rights that title did not pass to the minor.'

He relied on the decision reported in Ramakantarao arshinigi v. Land Tribunal, Michur and Anr., 1983(1) KLJ 303 wherein it has been held that:-

'Where a transfer had been made by registered sale deed, the reasoning of the Tribunal that the lands still stand in the name of the transferor cannot be sustained. No blame can be attributed to the transferor, if the vendee and the registering authority had not performed their duty under Section 128(4), Karnataka Land Revenue Act to give information to the village accountant to make mutation entries.'

Further, he has relied upon another decision reported in N. Shivanna v. State of Karnataka and Anr., 1980(1) KLJ 419 Where it has been held that:

'Under Section 128(1) Land Revenue Act, in the case of acquisition of right under a registered document required to be entered in the record, of rights and the register of mutations, the person acquiring the right under such document need not make a report and it is incumbent upon the registering authority to make a report of the acquisition of right to the prescribed officer, who shall on receipt of such report, enter in the register of mutations every report made to him. That being so, the failure on the part of the prescribed officer to make entries cannot jeo-paradise the right acquired under the registered deed.'

He has further relied on the decision reported in Golappa v. Malakappa, : ILR1995KAR118 wherein it has been held that:

'Karnataka Land Revenue Act, 1964 (Karnataka Act No. 12 of 1964)-Section 128-No period fixed for seeking mutation-Execution of sale deed riot in dispute confers good title and entry in owner's column possession in dispute, remedy before Civil Court.'

He has further relied on the decision in Gadigeyya Gualiah v. Chandrappa Basawanyappa and Anr., 1976(2) KLJ 264 wherein it has been held that:

'An order which gives no reason for rejecting the contention of the petitioner and accepting the case of the respondent is not a speaking order and is null and void.

Mere subjective satisfaction of the Tribunal that the applicant before it is the tenant, is not sufficient. The order that is required to be passed is a speaking order.

Merely stating that the claimant is a tenant, amounts to mere subjective satisfaction of the Tribunal. It must be objective satisfaction for which the reasons for coming to that conclusion must be disclosed in the order, and the order is open to judicial review by the High Court under Article 227 of the Constitution.'

He thereafter relied upon a decision in Shankar Rao v. Land Acquisition Officer, Bidar and Anr., 1987(2) KLJ 127 wherein it has been held that:

'Karnataka Land Reforms Rules, 1974-Rule 19- Tahsildar's duty to verify the particulars furnished in Form No. 7 with reference to the revenue records including record of rights and make a note on application (Form No. 7) is mandatory. Non-observance-Held, finding of fact recorded by Tribunal should be examined afresh.

He lastly relied upon a decision reported in Beerappa Lakkappa Devakatti v. Land Tribunal, Bijapur and Ors., 1977(1 ) KLJ 252 wherein it has been held that:

The Tribunal, which adjudicates upon the right to property of the citizens, has to make a speaking order; what is required is not the subjective satisfaction of the Tribunal that the applicant before it is a tenant or not, and since it is open to scrutiny by the High Court, must give reasons for its conclusions.

Therefore, it is submitted that the impugned order under challenge is liable to be quashed.

6. On the other hand, the Learned Counsel appearing on behalf of respondent No. 3 submitted that the petitioner herein said to have purchased the suit property in the year 1974 under a registered sale deed from Manjamma, Chikkamma and Paddamma and as the tenanted lands were purchased after 1.3.1974, they cannot question the grant of occupancy rights by the Tribunal prior to the date of purchase. In support of his contentions, he relied upon the decision reported in ILR 2000 Kar Short Notes 64, wherein it has been held that:-

'Karnataka Land Reforms Act, 1961-Section 48A- Person who purchases the land subsequent to the Appointed Day, cannot question the grant of occupancy rights by the Tribunal prior to the date of purchase.'

7. It is contended that respondent No. 3 being a Chalagenidar was cultivating the land by paying necessary rents to the previous owner. Therefore, the land purchased by the petitioner subsequently after 1.3.1974 with an intention to defraud the rights of the tenants. Though public notice was issued, the petitioner did not appear and participated in the proceedings. Therefore, the present writ petition is liable to be dismissed.

8. The Learned High Court Government Pleader appearing on behalf of respondent Nos. 1 and 2 supports the order passed by the Tribunal.

9. I have carefully examined the impugned order under challenge passed by the Tribunal. It is seen that initially the impugned order was challenged by the petitioner in W.P. No. 10384/86 and during the pendency of the writ petition, an amendment was brought to the Land Reforms Act and therefore, the said writ petition was transferred to the Land Reforms Appellate Authority and it was numbered as L.R.A. No. 1045/88. In view of the abolition of the Appellate Authority, a Civil Petition was filed before this Court in No. 4161/91 seeking transfer of appeal and to convert the same into writ petition. Accordingly, it was allowed and converted into writ petition.

10. It is seen that respondent No. 3 herein filed Form No. 7 on 21.12.1975, wherein the name of the petitioner has been shown, at item No. 10 as an owner. But the impugned order under challenge does not disclose the name of this petitioner as an owner. It is clear that the petitioner has purchased several items of the property from the previous owners i.e., Manjamma, Chikkamma and Paddamma under a registered sale deed on 6.9.1974 and pursuant to registering of all the disputed properties in the name of the petitioner, the Sub Registrar, Byndooru has forwarded Form X to the Tahsildar, Kundapura on 13.9.1974. Based on the said registration, it was the duty of the revenue authorities viz., the Tahsildar to make necessary entries in the owner's column. But, the name of the petitioner does not find a place in the records of rights register. It is seen that knowing fully well that the petitioner had purchased the said lands from his previous vendors and filed Form No. 7 on 21.12.1975 i.e., after 15 months from the date of purchase, included the name of the petitioner as an owner. But the records disclose that no notice was issued to the petitioner herein by the Addl. Land Tribunal, Kundapura. The office copy of the notice shows that general notice had been issued well in advance, but the notice was not issued to the petitioner. The copy of record of rights register produced by the petitioner discloses that A. Annappa Shetty was the owner of the said lands, but in Column No. 12(2) neither the name of the owner nor respondent No. 3 was shown as a cultivator. The impugned order is not a speaking order and respondent No. 3 who filed Form No. 7 is expected to prove before the Tribunal that as on 1.3.1974 and immediately prior to that, he was cultivating the land as a lawful tenant. But he has not produced the copies of Records of rights register to show that he was cultivating the lands as a lawful tenant from its previous owners.

11. It seems that the Tribunal has passed the impugned order hurriedly, without giving notice to the petitioner inspite of showing his name at item No. 10 in Column 1 of Form No. 7. Respondent No. 3 has not produced the documents like Records of rights register to show that he was cultivating the lands in question prior to 1.3.1974 and thereafter as a lawful tenant.

12. Therefore, considering the facts and circumstances of the case, this writ petition is allowed and the impugned order under challenge is hereby quashed and the matter is remitted to the Tribunal, with a direction to issue notice to all the persons whose names have been shown in Form No. 7 including the petitioner as owner as well as by causing public notice after they putting in their appearance, by giving them sufficient time and opportunity to have their say in the matter, the same may be disposed of in accordance with law.


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