K. Ramanna, J.
1. This is a Writ Petition filed by the petitioners under Article 226 & 227 of the Constitution of India with a prayer to writ of certiorari by quashing the order dated 28.3.89 passed by the Land Tribunal, Belgaum, in Kangrali B.K./S.R.16 whereby the Tribunal confirming the occupancy rights in the joint names of respondents 3 to 5 in respect of the land bearing Sy. No. 100 and 64/2 measuring 1 A. 33 G. and 11 A.36G. respectively. The assailing the same he has come up with this Writ Petition.
2. The case of the petitioners 1(a) to 1(d) are that they are the wife and children of late Vishwanath. Initially, the petitioners being the L.Rs. of deceased Vishwanath filed an appeal before the District Appellate Authority, Land Reforms, Belgaum, in R.AX.R. No. 16/1990 under Section 118(1)(a) of the K.L.R. (Amended Act) 1986 mainly on the grounds that the Tribunal failed to comply with the mandatory provisions of law and violation of principles of natural justice and equity in appreciating the evidence on record and without holding proper enquiry and without giving reasonable opportunity being heard passed the impugned order confirming occupancy rights in favour of the respondents 3 to 5 is illegal, erroneous when the claim made by them in form No.7 is only to the extent of 4 A. 18 G. and the Tribunal lost sight of the material documentary evidence, both oral and documentary and the Tribunal has given much importance by relying upon the entries in the Record of Rights as shown against cultivator's column in respect of the land in question and the same have not been proved by the respondents 3 to 5 by reason of better evidence. The entire land where the grass is grown naturally, therefore, the land in question does not come within the ambit of the provisions of K.L.R. Act. The court ought too have been treated and decided as a preliminary issue regarding its jurisdiction. But, in spite of bringing it to the notice that, the land in question is a naturally grass growing land the provisions of K.L.R. Act is not applicable, even then the tribunal failed to decide the matter in accordance with law. So also the court below erred in relying on the decision reported in ILR 1980 Karnataka page 156, even though the facts of this case are quite contrary to the facts of the case relied upon by the trial court. The manner in which the tribunal held the spot inspection is totally unknown to law. No prior notice was issued to the parties before making such spot inspection and the parties are not given opportunity to cross-examine the witnesses whose evidence the Tribunal relied upon to arrive at a conclusion. Hence this Writ Petition.
3. When the appeal RALR 16/1990 pending before the District Appellate Authority, Land Reforms, Belgaum, an amendment was brought to Land reforms Act abolishing Land Reforms Appellate Authority. Therefore, the petitioners being the LRs of late Vishwanath filed civil petition under Rule 17 of the Karnataka Land Reforms rules and a C.P.5560/91. Accordingly, this Court allowed the C.P. and converted the said appeal into this Writ Petition.
4. Heard the arguments of the learned Counsels of the LRs. of the petitioners 1(a) to 1(d), learned High Court Government Pleader, respondent Nos. 1 and 2 so also the learned Counsel for respondents 3 to 5.
5. During the course of arguments Sri Ravi B. Naik, learned Counsel for the petitioners submitted on 6.3.1969 the father of the respondents 3 to 5 tiled an application under Section 25 r/w R9 of the Mysore land Reforms Act seeking permission to surrender the land measuring 11 A. 36 G. in RS No. 64/2 (eastern portion) in favour of the deceased petitioner, which came to be allowed on 31.3.1969. It is further argued that on the very same day late Vishwanath took possession of the said land from the father of respondents 3 to 5. But, subsequently it was challenged the said order dated 31.3.69 in ALR155/69 by the respondents 3 to 5 before the II Additional. District Judge, Belgaum, which was allowed holding that the deceased petitioner (landlord) is entitled to take eastern portion measuring 7A. 18G out of Sy.No. 64 from the possession of the respondent tenants by modifying the order passed by the tribunal. Assailing the same the father of the petitioner 1(a) to 1(d) challenged the same in CRP 1151/71 before the High Court of Mysore which was dismissed as there is no error of jurisdiction in modifying the order by the Additional. District Judge, Belgaum. Again respondents 1 to 3 herein filed form No.7 to confirm the occupancy rights in respect of land bearing Sy. Nos. 100 and 64 and remained undecided. In the meanwhile they filed a suit OS 114/75 against one Gopalnarayan Khot and deceased petitioner Vishwanath Narasu Kalaghtgi. The civil judge granted permanent injunction against Suhas Viswanath Kalghatagj, L.R. of the petitioner deceased Vishwanath and Gopalnarayan Khot. Subsequently, the impugned order dated 28.3.89 came to be passed even though the tribunal had no jurisdiction and decided the matter on the point of jurisdiction. He argued that when once the land has been surrendered by the father of respondents 3 to 5, they are not entitled to either to file form No. 7 claiming occupancy rights. When once they were dispossessed the question of again granting occupancy right does not arise under KLR Act.
6. In this behalf, learned Counsel for the LRs. of the deceased petitioner relied on a decision of this Court reported in the case of Siddamma and Anr. v. State of Karnataka and Ors. 1979 (1) KLJ 233 wherein this Court held that 'An order of a tribunal accepting the surrender by the tenant and permitting the landlord to enter upon the lands surrendered had the effect of putting the tenancy to an end, and thereby the relationship of landlord and tenant also came to an end. If in spite of the order under Section 25, the tenant remained in possession, his possession will not be a tenant. In the very same decision it was further held wherefore the surrender the name of the landlord is entered in the Record of Rights as the person personally cultivating and the tribunal has not taken into consideration the entries in the record or rights and had not raised the necessary presumption arising out of the entries, the order of the tribunal granting occupancy right is vitiated'.
7. Further, learned Counsel for the petitioner also relied on a decision of this Court in case of Puppe Gowda and Ors. v. Land Tribunal, Beluru and Ors. ILR 1977 Kar. 237 wherein this Court has held that 'Where the alleged tenant has not been in possession of the agricultural land and he has not been cultivating it personally immediately prior to 1st March of 1973 such land does not vests in the State Government under Section 44 of the Act, and the tenant is not entitled to be registered as an occupant in respect of such land'. Therefore, it is submitted by the learned Counsel for the petitioners that the order under challenge dated 28.3.89 is liable to be quashed. That apart, the learned Counsel for the petitioners argued that on 22.2.1989 the land tribunal including chairman and its members inspected the spot and found that the land is a grass land, where it appears water stagnates during rainy season and the grass appears to grow naturally on this disputed 7 acres and odd guntas of land and some shrubs are also grown. A small portion of the land has been recently ploughed by tractor to show inspecting people that agriculture was done by one Narayanappa Kallappa patil. But the owner of the land stated that the grass is grown in the said land by ploughing the land. Therefore, the land in question is unfit for cultivation.
8. As against this the learned Counsel for respondents 3 to 5 submitted that either the father of respondents 3 to 5 or the respondents have not surrendered the land at any point of time and the question of taking possession by the deceased petitioner Vishwanath does not arise. It is further argued by the counsel that at that time the deceased petitioner was working as Under Secretary in the Revenue Department which has not been disputed and order if any passed by Revenue Authorities under S.25 is illegal and inoperative. Therefore, filing of the vardhi by the father of respondents 3 to 5 does not arise. It is submitted that the land bearing Sy.No. 64/2A 7A. 18G. and 64/2B 4A. 18G. and the portion of land has been acquired by the Land Acquisition Officer for formation of the road out of Sy. No. 64/2. It is further argued by the counsel for the respondents-3 to 5 that the land in question was vested with the Government. It is not a valid surrender and that the respondents tenants are justified in filing form No. 7 for grant of occupancy rights, therefore, the writ petition is not at all maintainable and the same is liable to be dismissed and that the owner of land has manipulated Annexure A which was filed on 6.3.96, accordingly the civil court has no competency to grant permission to surrender under Section 69 of the KLR Act.
9. To that effect, learned Counsel for the respondents 3 to 5 relied upon a decision reported in case of Puttegowda v. State Of Karnataka and Ors. AIR 1980 Kar. 102 wherein, it has been held that 'Granting of occupancy rights - Lands not surrendered notwithstanding the permission to surrender can be taken into consideration'.
10. He has also relied on another decision of the Supreme Court reported in case of State of Karnataka and Anr. v. Uppegouda and Ors. : (1997)3SCC593 wherein it has been held that 'The object of Tenancy Act is to protect the tenants to remain in possession and enjoy it subject to compliance of the provisions of the Tenancy Act. Contracted tenancy comes to an end and statutory tenancy sets in operation and so he would be liable for ejectment only on proved grounds of statutory contravention, the entries of revenue records are self-serving. There was no order of a competent authority of eviction of tenant for contravention of the above-mentioned grounds. The proviso, though enables a landlord to obtain possession on surrender, it must be proved strictly, as several devices would be used to circumvent the beneficial provision and illiteracy and ignorance of the tenant would be taken advantage of. It is easy to have the entries made with the assistance of patwari who had exclusive custody of the records. There is no proof of eviction of the tenant. The stand taken by the landholder is not supported by legal setting'.
11. He has also relied upon another decision reported in case of Tamobao Ramachandra Patil v. State of Karnataka by its Secretary, Revenue Department and Ors. ILR 2003 Kar. 2003 wherein it has been held that the petitioner landlady questioned such grant of occupancy rights in favour of the legal representative of the tenants on the ground that the tenants had executed a surrender deed in her favour of the legal representatives of the tenants on the ground that the tenants had executed a surrender deed in her favor and that the Record of Rights shows her name as occupant. On finding that the surrender deed was signed only by one of the tenants and that there were no documents evidencing handing over of possession, the High Court dismissed the Writ Petition observing that there are various documents which prove that the tenants were in possession and cultivation of the lands'. Hence he prays for dismissal of the writ petition.
12. Whereas, the learned High Court pleader for respondents 1 and 2 contend that the tribunal is right in allowing the application filed in form No.7 filed by respondents 3 to 5 and after considering the oral and documentary evidence and also on the basis of the statements made by the adjacent land holders during the spot inspection. Hence, the present writ petition is liable to be dismissed.
13. Having heard the arguments for both parties, now the point that arises for my consideration and decision is whether the order under challenge dated 28.3.89 is based on legal and factual assertion?
14. It is an undisputed fact that late Vishwanath, Narsu Kalaghati was the owner of the land bearing Sy.No. 64, land bearing Sy. No. 100 of Kangrali B.K. village. Records indicate that an application filed under Section 25 of MLR Act by Minu Ganesh patil, resident of Kangrali village before the Land Tribunal, Belgaum, which was registered in SLC NO.29/69. So, after hearing both parties the tribunal held that the deceased petitioner Viswanath N. Kalaghati, the LRs. of the deceased petitioners 1(a) to 1(d) is entitled to enter upon and to take possession of 11A 36G. of land in Sy.No. 64 (eastern portion) from the possession of the applicant tenant Minu Ganesh Patil immediately by order dated 31.3.69. The said order has been challenged by Minu Ganesh Patil ALR 155/69 before the II Additional. Judge, Belgaum challenging the correctness of the order passed by the land Tribunal in SLC 21/69. But the learned II Additional. District Judge, Belgaum, allowed the appeal holding that the respondent landlord is entitled enter upon and to take possession of eastern portion measuring 7 A. 18 G. in Sy.No.64 from the possession of the appellant tenant by modifying the order passed by the tribunal to that extent as stated supra. Accordingly, the deceased petitioner said to have taken possession of 7A 18G of land which was surrendered by the deceased Minu Ganesh Patil. But, subsequently, the respondents 3 to 5 herein filed a joint application in form No. 7 claiming occupancy right. Accordingly, the impugned order came to be passed on 28.3.89. When the records indicate that immediately after passing the modified order by the II Additional. District, Judge, Belgaum, that the eastern portion of 7A. 18G. in Sy. No. 64/2 was taken over by the father of the petitioners and his name entered in the record of rights and considering the fact that the sport inspection made by the land tribunal discloses out of 11 A. 36 G. only 3A. only 3 acres said to have been ploughed recently with the help of tractor even though record of right indicates that 3 acres of land out of 11A. 36G. in Sy. No. 64/2 is in the occupation of respondents 3 to 5. Even though the records indicates that the names of respondents No.3 to 5 are appeared to extent of 3.00 acres in the records as against the cultivating column. Therefore, the impugned order granting of occupancy right to the extent of 11A. 36G. out of Sy. No. 64/2 by the land tribunal, Belgaum, is contrary to the legal evidence placed on record. There is no dispute with regard to the granting of occupancy right in favour of respondent No.3 to 5 to extent of 1.33 pertaining to land Sy.No. 100. As far as granting of 1A. 33G. out of Sy. No. 100 in favour of respondents 3 to 5 belongs to one Gopala Narayana Khot has not been challenged by him. Therefore, considering the facts and circumstances of the case and also the oral and documentary evidence placed on record, so also keeping in mind the order passed by the civil court the deceased Vishwanath Kalghatgi has taken possession of 3A 36 G. out of 11A. 36G. as per the orders passed by II Additional. Sessions Judge. Therefore, the contention of the learned Counsel for the petitioners that the father of respondents 3 to 5 have surrendered the entire extent of the land and subsequently started cultivating only 3.00 acre of land and he was put in possession cannot be accepted.
15. Considering the peculiar facts and circumstances of the case the writ petition is partly allowed. The order of granting occupancy right in favour of respondents 3 to 5 to the entire extent of 11 A 36 G. out of Sy. No. 64/2 of Kangrali village B.K. is hereby reduced and modified and the respondents 3 to 5 are entitled to for occupancy right to the extent of 3A out of Sy.No. 64/2 of Kangrali village. The grant of occupancy right in respect of land Sy.No. 100 of village Kangrali B.K. to an extent of 1 Acre 33 Guntas in favour of Respondent Nos.3 to 5 stands unaltered.