Ramachandra Krishna Bhatta
Vs. State of Karnataka
& ANR [2008] INSC 481 (14 March 2008)
Tarun Chatterjee & P.
Sathasivam
CIVIL APPEAL NOs. 7119-7120 OF 2000 P. Sathasivam, J.
1) These appeals are directed against the judgment and order dated
15.12.1998 passed by the High Court of Karnataka at Bangalore in L.R.R.P. No.
2810 of 1989 and the judgment and order dated 5.11.1999 in C.P. No.487 of 1999
dismissing the same.
2) Brief facts, in a nutshell, are as under:
Land bearing Survey No. 7/3 measuring 1 acre 4 guntas (Bagayath) and Survey
No. 56/1 measuring acres 21 guntas (wet) of Kannenhalli village, Yellapur Taluq
are agricultural lands and were owned by the Gopal Krishna Devaru Temple.
The lands were granted for cultivation on tenancy basis to the person performing
the daily pooja in the temple. No separate rent was being paid. Originally one
Mahabaleshwar Bhatta was performing pooja in the temple and was cultivating the
lands. He had three sons namely, Shambu Bhatta, Narayan Bhatta and Krishna
Bhatta. After his death, his eldest son, Shambu Bhatta started performing the
pooja in the temple and cultivating the lands in question. After the death of
Shambu Bhatta, Narayan Bhatta, second son of Mahabaleshwar Bhatta, started
performing pooja in the temple and also cultivating the lands. Krishna Bhatta,
third son of Mahabaleshwar Bhatta expired in the meantime. After the death of
Narayan Bhatta, Thimmappa, son of Shambu Bhatta started performing the pooja in
the temple and also cultivating the lands. In the year 1940, Thimmappa Bhatta,
respondent No.2 herein, relinquished his rights and surrendered the lands to
the temple authorities and left the village and started cultivating other lands
thereat. In the year 1943, the Trustees of the temple entrusted the rights of
performing pooja in the temple and cultivating the lands to Ramachandra Krishna
Bhatta, appellant herein and his mother. The appellant is the son of Krishna
Bhatta. On 10.2.1948, the name of the mother of the appellant herein was
recorded in the Record of right as protected tenant of Sy. No. 7/3 and the name
of the appellant as ordinary tenant for Sy. No. 56/1 vide Entry Nos. 198 and
238 respectively. In the year 1953, Thimmappa Bhatta, respondent No.2 herein,
filed a suit being Suit No. O.S.
19/1953 before the Civil Judge, Junior Division, Haliyal for partition and
possession of joint family properties. In the plaint itself, respondent No.2
admitted that he had left the village and gone to village Hittalli to look
after the properties of his sister. On 31.5.1958, the trial Court held that in
so far as the scheduled lands are concerned, the properties were shown as
tenanted lands assigned for worship of Shri Gopal Krishna Dev Temple. The trial
Court also held that the plaintiff (respondent No.2 herein) had given up his
claim for the purpose of the suit and that the suit insofar as it relates to
these lands is held to be incompetent for want of sanction of Charity
Commissioner. As regards the remaining immovable properties, there was no
dispute and it was ordered to be partitioned. After the death of the mother of
the appellant herein, the name of the appellant was registered vide No. 303 in
respect of both the surveys in the Record of rights dated 27.8.1961. In this
regard, an objection was raised by respondent No.2 herein but the same was
rejected.
Thereafter, in the year 1963, respondent No.2 filed another suit being O.S.
No. 70 of 1963 for partition and possession of the suit lands. Prior to filing
of the suit, he applied to the Charity Commission for permission to file the
suit for partition of the suit lands. The said request was rejected. O.S. No.70
of 1963 was also dismissed. Against the said judgment and decree, respondent
No.2 filed an appeal being R.S.A. No. 930 of 1973 before the High Court of
Karnataka.
3) During the pendency of the second appeal, the Karnataka Land Reforms Act,
1961 (hereinafter referred to as "the Act") was amended and it was,
inter alia, provided that all agricultural lands held by or in possession of
tenants shall vest in the Government free from all encumbrances. Section 45
confers a right on the tenants to apply for grant of occupancy rights. Section
48 A provides for filing of application by a tenant to the Tribunal holding of
enquiry etc.
Section 133 provides that a Tribunal constituted under the Act alone shall
have jurisdiction to decide the question of tenancy and Section 132 bars the
jurisdiction of Civil Courts to decide any question required to be decided by
the Tribunal. The appellant herein filed an application in Form No.7 for grant
of occupancy rights. However, no application was filed by respondent No.2 for
grant of occupancy rights either for himself or on behalf of the joint family.
In the meantime, during the pendency of the proceedings before the Land
Tribunal, the High Court considered RSA No. 930 of 1973 filed by respondent
No.2 herein and while allowing the appeal remanded the matter to the trial
Court for disposal on merits by fixing the share. On 5.11.1974, the Tribunal
constituted under the Act considered the application filed by the appellant and
held that the appellant was the tenant as on 1.3.1974 and accordingly granted
occupancy rights to the appellant.
Against the said order, respondent No.2 moved Writ Petition No. 19619 of
1979 before the High Court of Karnataka. The remanded suit which was renumbered
as O.S. No.34 of 1979 was decreed on 18.12.1980 holding that the defendants had
not perused all issues except issue No.5 and that as regards issue No.5 the
suit was not affected by Bombay Prevention of Fragmentation and Consolidation
of Holdings Act.
Accordingly, plaintiff Thimmappa (respondent No.2 herein) was held entitled
to 2/3rd share in both the surveys. On 9.6.1983, the High Court passed an order
in W.P. No.19619 of 1979 filed by respondent No.2 by allowing the writ petition
and remanded the matter back to the Tribunal for fresh consideration. The
Tribunal considered the application afresh and held enquiry as contemplated in
the Act and the Rules.
On 16.8.1985, the Tribunal held that the appellant alone was cultivating the
land as tenant on the appointed date and the temple was the owner of the lands
and accordingly granted occupancy rights to the appellant. Aggrieved by the
said order, respondent No.2 herein filed Writ Petition before the High Court. Consequent
upon constitution of appellate authority, the matter was transferred before the
said Authority for consideration and was registered as DAAA: AP:
244.330/86. On 31.1.1989, the appellate Authority held that the lands were
tenanted lands, therefore, allowed the appeal and quashed the order of the
Tribunal. Dissatisfied therewith, the appellant preferred LRRP No. 2810 of 1989
before the High Court and the same was dismissed by order dated 15.12.1998.
On 5.11.1999, the review petition filed by the appellant herein was also
dismissed. Hence, aggrieved by the said orders, the appellant preferred the
above appeals before this Court by way of special leave.
4) Heard Mr.R.S. Hegde, learned counsel for the appellant, and Mr. S.N.
Bhat, learned counsel for the respondents.
5) It is the grievance of the appellant that though the Land Tribunal, by
order dated 16.08.1985, declared and granted occupancy right in his favour in
respect of the land in Survey Nos. 56/1 to an extent of 2-21-0 and 7/3 to an
extent of 1-4-0 of Kannenalli village, the Land Reforms Appellate Authority and
the High Court exercising power under the Act committed an error in setting
aside the order of the Land Tribunal and rejecting the application of the
appellant seeking occupancy right in respect of the said lands. In view of
narration of the facts in the earlier paragraphs, there is no need to traverse
the same once again. It is true that on the application made by the appellant
who is the son of Krishna Bhatta and grand-son of Mahabaleshwar Bhatta,
Karnataka Land Tribunal, after finding that the lands in question are temple
lands which are being cultivated by the applicant (appellant herein) in
recognition of his temple service and is being continuously cultivating these
lands from 1944, arrived at a conclusion that he is cultivating the lands which
belong to the temple as tenant and, therefore, he is entitled to occupancy
rights.
Aggrieved by the said decision, Mahabaleshwar Narayan Bhatta and Thimmappa
Bhatta, sons of Shambu Bhatta and Narayan Bhata respectively and grand-sons of
Mahabaleshwar Bhata filed appeal before the Land Reforms Appellate Authority.
The Appellate Authority, after analyzing the materials, particularly judgment
and decree of the civil court as well as orders of the authority, came to the
conclusion that the disputed lands are joint family properties belonging to all
the three parties, namely, Ramachandra Krishna Bhatta, Mahabaleshwar Bhata and
Thimmappa Bhatta. It is relevant to point out that the Appellate Authority came
to such conclusion on the basis of the decree of the civil court vide O.S. No.
37 of 1979. The following conclusion of the Appellate Authority is relevant:
"Since the 3rd respondent has not taken any objection, we come to the
conclusion that the disputed lands are the tenancy lands of undivided family of
the appellants and the 3rd respondent. From these undisputed facts, it is clear
that the right of performing the pooja of Sri Gopalkrishna deity and other
services and the enjoyment of disputed lands were not given to the 3rd
respondent, but pooja and other services were the undivided rights of the joint
family in addition to the tenancy rights."
Based on the finding rendered by the civil court and other materials placed
before it, the Appellate Authority has concluded:
"Therefore, there is no merit in the contention of the 3rd respondent
that he alone is in possession and cultivating the disputed lands for the
relevant period and he is eligible for the occupancy rights and we answer
accordingly by rejecting his contention."
6) The Appellate Authority has rightly pointed out that as per Section 48A
of the Act, it is incumbent upon the part of the Land Tribunal to give public
and personal notices before passing an order in an application filed under
Section 48. It is not in dispute that the Land Tribunal has not heard the
representative of Shri Gopalkrishna Devaru Temple. A reading of sub-section (2)
of Section 48A makes it clear that on receipt of application, the Tribunal has
to issue public notice in the village in which the land is situated calling
upon the landlord and all other persons having interest in the land to appear
before it on the date specified in the notice. It is also incumbent on the part
of the Tribunal to issue individual notice to the persons mentioned in the
application and also to such others as may appear to it to be interested in the
land.
Sub-section (3) prescribes form of the application, form of the notices and
the manner of publishing or serving the notices.
Sub-section (4) says that where no objection is filed, the Tribunal, after
verification, pass an order to either grant or reject the application. As per
sub-section (5) where an objection is filed disputing the validity of the
applicant's claim or setting of a rival claim, it is incumbent on the part of
the Tribunal to conduct enquiry and thereafter determine the person entitled to
be registered as occupant and pass orders accordingly. The factual finding of
the Appellate Authority shows that the Land Tribunal failed to cause either
public notice in the village or to the deity Gopalkrishna Devaru Temple. In
view of the same, it is clear that the Land Tribunal has not fulfilled the
requirement which is mandatory and the Appellate Authority rightly interfered
with the order of the Land Tribunal and set aside the same.
7) The Appellate Authority has also concluded that there is no acceptable
material holding that the appellant alone was cultivating the land and entitled
for the grant of occupancy right.
8) The High Court considered the revision petition filed by the appellant
before it under Section 121A of the Act. A reading of the revisional
jurisdiction of the High Court shows that only for the purpose of satisfying
itself as to the illegality or as to the regularity of such order or
proceeding, the High Court is permitted to interfere. The High Court, in the
impugned order, very well noted the factual finding of the Land Reforms
Appellate Authority that the nature of possession of the appellant cannot be
regarded as tenant of the land. The High Court has also concluded that there is
absolutely no evidence in respect of its claim that he paid rent to the 3rd
respondent as a tenant under him. On the other hand, his plea that he was a
tenant of the land was not allowed to be raised and rejected in O.S. No. 34/79
which had become final. In the light of the said materials, after finding that
the Land Reforms Appellate Authority was right in holding that the appellant's
claim of tenancy was not established and there is no illegality or procedural
irregularity which calls for interference in revision, under Section 121,
dismissed the same.
9) In view of the factual finding arrived by the Land Reforms Appellate
Authority and affirmed by the High Court which is a Revisional Authority, in
the absence of any acceptable material, we are of the view that interference by
this Court under Article 136 of the Constitution of India is not warranted.
10) In the light of the above conclusion, the appeals are liable to be
dismissed as devoid of any merit and accordingly dismissed. No costs.
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