published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40793
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8289 OF 2013
(arising out of SLP(C)No.14496 of 2006)
CHANNABASAPPA(DEAD) BY LR & ANR. … APPELLANTS
VERSUS
STATE OF KARNATAKA & ORS. … RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted.
1. This appeal has been preferred by the appellants against the judgment
and order dated 2nd June, 2006 passed by the Division Bench of the High
Court of Karnataka at Bangalore in W.A. No.3836/2005(LR). By the impugned
judgment the Division Bench dismissed the appeal preferred by the
appellants herein and affirmed the order passed by the learned Single
Judge, whereby the learned Single Judge directed the Land Tribunal to
verify the aspect of filing of Form No.7 by the tenant.
2. The factual matrix of the case is as follows:
The appellants claim to be the owners of lands in Sy. Nos. 33, 37,
38, 39, 40, 41 and 53 situated in village Halligeri, Dharward Taluk,
Karnataka, having purchased the same in the year 1956.
According to the
appellants, the lands were in their personal cultivation since then.
3. The 2nd respondent, Gangappa (since deceased) filed an application
before the Special Tahasildar, Land Reforms, Dharwad, contending therein
that he had sent an application on 23rd June, 1975 in Form No.7 for
registering him as an occupant of the lands belonging to the appellants.
The Special Tahasildar, Land Reforms, on 31st October, 1987 replied that
there was no record of having received such an application from the 2nd
respondent in respect of the lands in question and no entry was made in the
Register of Form No.7 maintained by the Land Tribunal.
4. The 2nd respondent filed Writ Petition No.4165/1988 in the High Court
of Karnataka at Bangalore with the prayer for a direction to the Tribunal
to conduct enquiry under Section 48-A of the Karnataka Land Reforms Act,
1974 (hereinafter referred to as the “Land Reforms Act”) and to grant him
occupancy rights. In support of his claim for having sent the application,
the 2nd respondent had produced a xerox copy of a postal receipt and
acknowledgment. The High Court by its order dated 5th August, 1991 remanded
the matter to the Land Tribunal to consider whether in fact the 2nd
respondent had filed an application in Form No.7, and if it was found that
he had made such an application, then to consider it on merits in
accordance with law. The said order was challenged before the Division
Bench of the High Court as well as by way of Special Leave Petition before
this Court unsuccessfully.
5. After a detailed enquiry, by the order dated 2nd June, 1997, the Land
Tribunal found, on evidence produced before it, that the 2nd respondent had
not proved that he had in fact sent an application to the Land Tribunal in
Form No.7.
Before the Land Tribunal, the 2nd respondent produced xerox copy of
the Form No.7 on 27th November, 1993, claiming to be the one sent by him by
post.
Although, the Land Tribunal came to the conclusion that there was no
proof of filing of Form No.7 by the 2nd respondent, unanimously it decided
to admit the copy produced by the 2nd respondent on 27th November, 1993 for
enquiry under Section 48-A of the Land Reforms Act and, upon evidence, held
that the lands were in self-cultivation of the appellants and the 2nd
respondent was not a tenant of the lands in question as on 1st March, 1974
or immediately prior thereto and as such rejected his application on
merits.
6. The 2nd respondent being aggrieved filed a writ petition being W.P.
No.15722/1987 challenging the correctness of the order of the Land
Tribunal. Though the learned Single Judge noticed that the Land Tribunal
had admitted the xerox copy of the Form No.7 produced by the 2nd respondent
on 27th November, 1993 and had conducted an enquiry thereon under Section
48-A of the Land Reforms Act, learned Single Judge, by the judgment dated
3rd June, 2005 remitted the matter to the Tribunal to find out whether the
application existed in the records and whether in fact the 2nd respondent
had filed an application in Form No.7.
7. The appellants thereafter filed a review petition before the learned
Single Judge bringing to the notice of the learned Single Judge that the
copy of the application found in records was the one which the second
respondent had filed on 27th November, 1993 and that the remand was
unnecessary as the application was admitted and enquiry was conducted
thereon. However, learned Single Judge did not appreciate the grounds for
the review and dismissed the review petition on 1st July, 2005.
8. The appellants being not happy preferred the writ appeal in question
before the Division Bench which dismissed the same by the impugned judgment
on 2nd June, 2006.
9. Notices were issued to respondents. The legal representatives of the
2nd respondent who are party respondents appeared.
10. Learned counsel for the appellants submitted that the Land Tribunal
having accepted the filing of the Form No.7 by the 2nd respondent, there is
no question of remitting the matter again to the Tribunal to find out
whether the Form No.7 is available on records and whether the Form No.7 was
filed by the 2nd respondent.
11. Learned counsel for the respondents submitted that the 2nd respondent
had produced the copy of the Form No.7 and made it available on records to
the Land Tribunal and the case was rightly remanded to make a detailed
enquiry under Section 48-A of the Land Reforms Act. However, such
submission cannot be accepted in view of the finding already recorded by
the Land Tribunal.
12. On perusal of order dated 2nd June, 1997 passed by the Land Tribunal,
we find that the Land Tribunal admitted Form No.7 produced by the 2nd
respondent in view of the High Court’s direction dated 5th August, 1991
passed in W.P.No.4165/1988 and on enquiry made under Section 48-A, held as
follows:
“……In spite of this, in view of the directions dated 5-8-91 in W.P.
No.4165, the Form No.7 produced by the applicant is admitted and
enquiry upon the same is taken up by unanimous opinion of the Land
Tribunal.
Applicant has not produced any document to prove that he was in
possession and cultivation of the suit lands on 1-3-1974 or
immediately prior thereto. Except his own statement, the applicant
has not produced any evidence to establish that he held the lands on
crop share basis. In this respect, he has not produced any acceptable
evidence. But on the other hand, the opponents have produced pahani
records for the years prior to 1974 as well as for subsequent years,
in which nowhere the name of the applicant is appearing in the
cultivator’s column. It is apparent that all the lands were in self
cultivation.
Apart from this, the opponents have produced tax paid receipts in
respect of the suit lands. The opponents have also given a
declaration regarding their holding under Section 86 of the Karnataka
Land Reforms Act, claiming it to be under self cultivation and vide
order NO.KLR:D:SR:752 dated 25-3-82, this Land Tribunal has accepted
the declaration holding that he is not in possession of excess lands.
In the said order there is no mention about the said lands being
subject to tenancy. For all these reasons, the following order is
passed by unanimous opinion of this Land Tribunal.
ORDER
It is decided unanimously that the applicant was not in occupation
and cultivation of the suit lands as a tenant on 1-3-1974 or
immediately prior thereto.
This order is pronounced and read out in open Court on 2-6-97.
Sd/-
Land Tribunal, Dharwad
Members:
1. Sd/-
2. Sd/-
3. Sd/-.”
13. Thus, it is clear that
the Tribunal admitted Form No.7 produced by
the 2nd respondent and on an enquiry gave definite finding that the
applicant-2nd respondent was not in occupation or cultivation of the suit
land as a tenant as on 1st March, 1974 or prior thereto.
In view of such
finding of the Tribunal it was not open for the learned Single Judge to
remand the matter again to the Tribunal to enquire whether Form No.7 is on
record or Form No.7 was produced by the 2nd respondent which in fact
rendered the order dated 2nd June, 1997 passed by the Tribunal ineffective
for no reason.
The Division Bench of the High Court also failed to notice
the above-said fact and thereby erred in affirming the order passed by the
learned Single Judge.
14. For the reasons aforesaid, we set aside the impugned order dated 2nd
June, 2006 passed by the Division Bench in W.A.No.3836/2005(LR) and order
dated 3rd June, 2005 passed by the learned Single Judge in W.P.
No.15722/1997, order dated 2nd June, 1997 passed by the Land Tribunal,
Dharwad is restored. The appeal is allowed. There shall be no order as to
costs.
………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
……………………………………………….J.
(RANJAN GOGOI)
NEW DELHI,
SEPTEMBER 17, 2013.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8289 OF 2013
(arising out of SLP(C)No.14496 of 2006)
CHANNABASAPPA(DEAD) BY LR & ANR. … APPELLANTS
VERSUS
STATE OF KARNATAKA & ORS. … RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted.
1. This appeal has been preferred by the appellants against the judgment
and order dated 2nd June, 2006 passed by the Division Bench of the High
Court of Karnataka at Bangalore in W.A. No.3836/2005(LR). By the impugned
judgment the Division Bench dismissed the appeal preferred by the
appellants herein and affirmed the order passed by the learned Single
Judge, whereby the learned Single Judge directed the Land Tribunal to
verify the aspect of filing of Form No.7 by the tenant.
2. The factual matrix of the case is as follows:
The appellants claim to be the owners of lands in Sy. Nos. 33, 37,
38, 39, 40, 41 and 53 situated in village Halligeri, Dharward Taluk,
Karnataka, having purchased the same in the year 1956.
According to the
appellants, the lands were in their personal cultivation since then.
3. The 2nd respondent, Gangappa (since deceased) filed an application
before the Special Tahasildar, Land Reforms, Dharwad, contending therein
that he had sent an application on 23rd June, 1975 in Form No.7 for
registering him as an occupant of the lands belonging to the appellants.
The Special Tahasildar, Land Reforms, on 31st October, 1987 replied that
there was no record of having received such an application from the 2nd
respondent in respect of the lands in question and no entry was made in the
Register of Form No.7 maintained by the Land Tribunal.
4. The 2nd respondent filed Writ Petition No.4165/1988 in the High Court
of Karnataka at Bangalore with the prayer for a direction to the Tribunal
to conduct enquiry under Section 48-A of the Karnataka Land Reforms Act,
1974 (hereinafter referred to as the “Land Reforms Act”) and to grant him
occupancy rights. In support of his claim for having sent the application,
the 2nd respondent had produced a xerox copy of a postal receipt and
acknowledgment. The High Court by its order dated 5th August, 1991 remanded
the matter to the Land Tribunal to consider whether in fact the 2nd
respondent had filed an application in Form No.7, and if it was found that
he had made such an application, then to consider it on merits in
accordance with law. The said order was challenged before the Division
Bench of the High Court as well as by way of Special Leave Petition before
this Court unsuccessfully.
5. After a detailed enquiry, by the order dated 2nd June, 1997, the Land
Tribunal found, on evidence produced before it, that the 2nd respondent had
not proved that he had in fact sent an application to the Land Tribunal in
Form No.7.
Before the Land Tribunal, the 2nd respondent produced xerox copy of
the Form No.7 on 27th November, 1993, claiming to be the one sent by him by
post.
Although, the Land Tribunal came to the conclusion that there was no
proof of filing of Form No.7 by the 2nd respondent, unanimously it decided
to admit the copy produced by the 2nd respondent on 27th November, 1993 for
enquiry under Section 48-A of the Land Reforms Act and, upon evidence, held
that the lands were in self-cultivation of the appellants and the 2nd
respondent was not a tenant of the lands in question as on 1st March, 1974
or immediately prior thereto and as such rejected his application on
merits.
6. The 2nd respondent being aggrieved filed a writ petition being W.P.
No.15722/1987 challenging the correctness of the order of the Land
Tribunal. Though the learned Single Judge noticed that the Land Tribunal
had admitted the xerox copy of the Form No.7 produced by the 2nd respondent
on 27th November, 1993 and had conducted an enquiry thereon under Section
48-A of the Land Reforms Act, learned Single Judge, by the judgment dated
3rd June, 2005 remitted the matter to the Tribunal to find out whether the
application existed in the records and whether in fact the 2nd respondent
had filed an application in Form No.7.
7. The appellants thereafter filed a review petition before the learned
Single Judge bringing to the notice of the learned Single Judge that the
copy of the application found in records was the one which the second
respondent had filed on 27th November, 1993 and that the remand was
unnecessary as the application was admitted and enquiry was conducted
thereon. However, learned Single Judge did not appreciate the grounds for
the review and dismissed the review petition on 1st July, 2005.
8. The appellants being not happy preferred the writ appeal in question
before the Division Bench which dismissed the same by the impugned judgment
on 2nd June, 2006.
9. Notices were issued to respondents. The legal representatives of the
2nd respondent who are party respondents appeared.
10. Learned counsel for the appellants submitted that the Land Tribunal
having accepted the filing of the Form No.7 by the 2nd respondent, there is
no question of remitting the matter again to the Tribunal to find out
whether the Form No.7 is available on records and whether the Form No.7 was
filed by the 2nd respondent.
11. Learned counsel for the respondents submitted that the 2nd respondent
had produced the copy of the Form No.7 and made it available on records to
the Land Tribunal and the case was rightly remanded to make a detailed
enquiry under Section 48-A of the Land Reforms Act. However, such
submission cannot be accepted in view of the finding already recorded by
the Land Tribunal.
12. On perusal of order dated 2nd June, 1997 passed by the Land Tribunal,
we find that the Land Tribunal admitted Form No.7 produced by the 2nd
respondent in view of the High Court’s direction dated 5th August, 1991
passed in W.P.No.4165/1988 and on enquiry made under Section 48-A, held as
follows:
“……In spite of this, in view of the directions dated 5-8-91 in W.P.
No.4165, the Form No.7 produced by the applicant is admitted and
enquiry upon the same is taken up by unanimous opinion of the Land
Tribunal.
Applicant has not produced any document to prove that he was in
possession and cultivation of the suit lands on 1-3-1974 or
immediately prior thereto. Except his own statement, the applicant
has not produced any evidence to establish that he held the lands on
crop share basis. In this respect, he has not produced any acceptable
evidence. But on the other hand, the opponents have produced pahani
records for the years prior to 1974 as well as for subsequent years,
in which nowhere the name of the applicant is appearing in the
cultivator’s column. It is apparent that all the lands were in self
cultivation.
Apart from this, the opponents have produced tax paid receipts in
respect of the suit lands. The opponents have also given a
declaration regarding their holding under Section 86 of the Karnataka
Land Reforms Act, claiming it to be under self cultivation and vide
order NO.KLR:D:SR:752 dated 25-3-82, this Land Tribunal has accepted
the declaration holding that he is not in possession of excess lands.
In the said order there is no mention about the said lands being
subject to tenancy. For all these reasons, the following order is
passed by unanimous opinion of this Land Tribunal.
ORDER
It is decided unanimously that the applicant was not in occupation
and cultivation of the suit lands as a tenant on 1-3-1974 or
immediately prior thereto.
This order is pronounced and read out in open Court on 2-6-97.
Sd/-
Land Tribunal, Dharwad
Members:
1. Sd/-
2. Sd/-
3. Sd/-.”
13. Thus, it is clear that
the Tribunal admitted Form No.7 produced by
the 2nd respondent and on an enquiry gave definite finding that the
applicant-2nd respondent was not in occupation or cultivation of the suit
land as a tenant as on 1st March, 1974 or prior thereto.
In view of such
finding of the Tribunal it was not open for the learned Single Judge to
remand the matter again to the Tribunal to enquire whether Form No.7 is on
record or Form No.7 was produced by the 2nd respondent which in fact
rendered the order dated 2nd June, 1997 passed by the Tribunal ineffective
for no reason.
The Division Bench of the High Court also failed to notice
the above-said fact and thereby erred in affirming the order passed by the
learned Single Judge.
14. For the reasons aforesaid, we set aside the impugned order dated 2nd
June, 2006 passed by the Division Bench in W.A.No.3836/2005(LR) and order
dated 3rd June, 2005 passed by the learned Single Judge in W.P.
No.15722/1997, order dated 2nd June, 1997 passed by the Land Tribunal,
Dharwad is restored. The appeal is allowed. There shall be no order as to
costs.
………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
……………………………………………….J.
(RANJAN GOGOI)
NEW DELHI,
SEPTEMBER 17, 2013.
