Abdul Khader (D) by
L.R.S. Vs. Tarabai and others.
J U D G M E N T
G.S. Singhvi, J.
1. This appeal is
directed against the judgment of the Division Bench of the Karnataka High Court
whereby Writ Appeal No. 963 of 2000 filed by the appellants against the order
of the learned Single Judge, who declined to interfere with the order passed by
Land Tribunal, Gulbarga (for short, "the Tribunal") for grant of
occupancy rights to the respondents was dismissed.
2. The predecessor of Abdul
Khader, who is now represented by his legal representatives, are said to be
Sajjada of the Darga of Hazarath Sheik Sirajuddin Junnedi of Shaik, Roza Gulbarga.
Land comprised in survey 2Nos.5, 6 and 7 situated at village Badepur, Taluk Gulbarga
is said to be Service Inam Land under the Darga. Abdul Khader leased out the
land to Basavannappa (husband of respondent No.1 - Tarabai) in 1957 for a
period of five years at an annual rent of Rs.500/- and on that basis, the
latter started cultivating the land.
3. Basavannappa gave interest
free loan of Rs.6,000/- to Abdul Khader and also supplied him foodgrains worth Rs.3,500/-.
After some time, he filed Suit No.35/1/1959-60 in the Court of Subordinate Judge
at Gulbarga for recovery of the loan etc. During the pendency of the suit, the
parties agreed to refer the matter for arbitration. After hearing the parties,
the Arbitrators passed award dated 15.10.1959. They took cognizance of the fact
that the land comprised in survey Nos.5, 6 and 7 was already leased out to
Basavannappa for five years and declared that the plaintiff will have to recover
the amount from the defendant by taking the land on lease for a period of 19 years
after expiry of five years term. Abdul Khader filed objections against the award
but the same were not entertained by the Subordinate Judge, who decreed the suit
on 29.10.1959 in terms of the arbitration award.
4. After coming into force
of the Karnataka Certain Inams Abolition Act, 1977 (for short, "the 1977 Act"),
Basavannappa filed an application under Section 5(1) of that Act for grant of
occupancy rights by asserting that he was in cultivating possession of land
comprised in survey Nos.5, 6 and 7 since 1957 as a tenant. Respondent No.2 - Shivapal
Singh, who is also represented by his legal representatives, filed similar
application for grant of occupancy rights in respect of 1 acre 12 guntas land comprised
in survey No.6. Abdul Khader too claimed occupancy rights over the land in
dispute and submitted form No.7.
5. By an order dated
27.6.1977, the majority of the Tribunal allowed the applications of Basavannappa
and Shivapal Singh and held that Basavannappa is entitled to occupancy rights
in respect of land comprised in survey Nos.5, 6 and 7 excluding 1 acre 12 guntas.
Shivapal Singh was declared as an occupancy tenant in respect of 1 acre 12 guntas
land comprised in survey No.6. However, the application of Abdul Khader was rejected
on the ground that he had not cultivated the land as a tenant.
6. Abdul Khader challenged
the order of the Tribunal in Writ Petition No.8584 of 1977. Basvannappa also filed
Writ Petition No.8583 of 1977 questioning the grant of occupancy rights to Shivapal
Singh. During the pendency of the writ petitions, Basavannappa died and his legal
representatives including respondent No.1 were brought on record and their names
were shown in the cause title of the order passed by the learned Single Judge. Both
the writ petitions were allowed by the learned Single Judge vide order dated 26.11.1984
on the ground that the Tribunal had decided the applications without recording
evidence and remitted the matter for fresh disposal of the applications filed
by the parties.
7. After remand,
respondent No.1 submitted an application in form No.1. Abdul Khader filed an application
for re-grant of the land. The Tribunal recorded the statements of all the
applicants. After considering the evidence of the parties and the written
submissions filed on their behalf, the Tribunal passed order dated 6.10.1987 and
declared that the respondents have acquired occupancy rights in respect of the land
which was in their cultivating possession. The relevant portions of order dated
6.10.1987 are extracted below: "...............Even though the landlord is
not cultivating the lands, he has requested to dismiss the applications of the
other applicants for granting occupancy rights. He has sought to dismiss their
application on the ground that he had mortgaged the land to the applicants and
not leased the same to them. As he has not produced any documents in support of
his claim, his request was rejected. Moreover, he also sought for rejecting the
applications of the applicants on the ground that envisaged in Section 79A of the
Karnataka Land Reforms Act, as they are not qualified for re-grant of the lands.
As he has failed to produce any document to support his contention, it was
decided to reject his contention. The applicant has stated that they are in cultivation
of the lands as per the decree of the Munsiff Court. In the decree it is stated
that the land is leased. Hence, the contention of the landlord is not liable
for consideration on any points of view and hence his application is rejected
and so unanimously resolved by the members of the Land Tribunal. As per the
statement of the Rajshekar S/o Basawannappa, he is the tenant of Sy.No.5, 6 and
7 and Shivapalsingh is the tenant in respect of 1 acre 12 guntas in Sy.No.6. As
the landlord and tenants, have filed the application in Form No.1 and in Form No.7,
it is decided to club them together and to take decision on Form no.1. Perused
the pahani and it is seen that applicants are the tenants of the lands prior to
1973-74 and thereafter. As per inam extract the land is inam land. In view of
the foregoing reasons and also as per Section 5 of the Karnataka Certain Inams Abolition
Act, Sri. B.M. Junnedi, the son of the applicant Shri Abdul Khadar Junnedi is not
entitled to be granted occupancy rights in respect of land Sy.Nos.5, 6 and 7 of
Badepur village. The Land Tribunal unanimously decided to grant occupancy rights
in favour of Smt. Tarabai W/o Basawannappa in respect of Sy.No.5 measuring 11 acres
10 guntas, Sy.No.6 measuring 7 acres 7 guntas and Sy.No.7 measuring 8 acres 22 guntas
and to Shivapalsingh S/o Jeshwanthsingh in respect of 1 acre 12 guntas in
Sy.No.6 occupancy rights. "
8. Abdul Khader
challenged the order of the Tribunal by filing an appeal before the Land
Reforms Appellate Authority, Gulbarga. After abolition of the Appellate
Authority in the year 1990, Abdul Khader filed an application before the High Court
with the prayer that the record of appeal bearing 6No.LRA/INA/No.218/87 be summoned
from the Appellate Authority and registered as a writ petition. Paragraph 1 of
that application reads as under: "The petitioner late Abdul Khader and
Respondents -1 and 2 had filed Application in Form No.l, numbered as LRA/INM/521/81-82
to Respondent No.4, for grant of occupancy rights of Sy.Nos.5,6 & 7 which
were Inam land under Karnataka Certain Inam Abolition Act 1977 of Badepur village.
Respondent No.4, by its order dated 6-10-87, rejected the Application of Abdul
Khader who had occupancy Applications of Respondents- 2 and 3 as stated in
its order."
9. The High Court
allowed the application and registered the appeal as Writ Petition No.
19622/1991. The plea of Abdul Khader that respondent Nos. 1 and 2 could not have
been granted occupancy rights because they were holding the land as mortgagees was
rejected by the learned Single Judge by observing that no evidence has been produced
to prove that the writ petitioner had mortgaged the land to respondent Nos. 1 and
2. The learned Single Judge then referred to the decree passed by Subordinate Judge,
Gulbarga and held that the finding recorded by the Tribunal that respondent No.
1 was cultivating the land from 1957 does not require interference.
10. The legal
representatives of Abdul Khader unsuccessfully challenged the order of the
learned Single Judge inasmuch as Writ Appeal No.963 of 2000 filed by them was
dismissed by the Division Bench of the High Court along with Writ Appeal No.
972 of 2000 filed by another legal heir of Abdul Khader.
11. Shri Shekhar Naphade,
learned senior counsel appearing for the appellants argued that the impugned judgment
is liable to be set aside because the decision of the Tribunal to grant occupancy
rights to the respondents is based on total misreading of the arbitration
award. Learned senior counsel submitted that Abdul Khader had created a mortgage
in favour of Basvannappa and, therefore, he cannot be said to have been cultivating
the land as a tenant as on 1.3.1974, which is sine qua non for grant of
occupancy rights under Section 48-A read with Section 45 of the Karnataka Land Reforms
Act, 1961 (for short, `the 1961 Act'). Shri Naphade then referred to the
prohibition contained in Section 79-A of the 1961 Act against the transfer of agricultural
land and argued that the application filed by Basavannappa for grant of occupancy
rights was not maintainable and was liable to be dismissed because he was a
money lender having an annual income of more than Rs.50,000/- from sources
other than agricultural lands. Learned senior counsel relied upon the provisions
contained in the Hyderabad Abolition of Inams Act, 1955 (for short, "the Hyderabad
Act, 1955") and the Hyderabad Tenancy and Agricultural Lands Act, 1950 and
argued that the occupancy rights could not have been conferred upon the
respondents in respect of Service Inam Lands.
12. Ms. Kiran Suri, learned
counsel for respondent No.1 supported the impugned judgment and argued that the
Tribunal did not commit any error by granting occupancy right to respondent No.
1 because by virtue of Section 4 of the 1977 Act, the tenure of all Inams stood
abolished. Learned counsel further argued that neither the Tribunal nor the High
Court misconstrued/misinterpreted the arbitration award in terms of which Basavannappa
continued to cultivate the land which had already been leased out to him by
Abdul Khader. Ms. Suri pointed out that Abdul Khader did not challenge the
decree passed by Subordinate Judge, Gulbarga in the suit filed by Basvannappa and
argued that his legal representatives are not entitled to indirectly question the
arbitration award, which recognised the fact that Basvannappa was already in possession
of the land by virtue of lease granted by Abdul Khader. Learned counsel also pointed
out that Basvannappa had filed application under Section 5 of the 1977 Act read
with Section 48-A of the 1961 Act and Abdul Khader had filed application under Section
5(3) of the 1977 Act and argued that the Tribunal did not commit any illegality
by recognizing that respondent No. 1 had become occupancy tenant because she
and her husband were cultivating the land as tenant since 1957 and were doing
the same activity on the cut off date i.e. 1.3.1974. In the end, Ms. Suri argued
that the Hyderabad Tenancy and Agricultural Lands Act, 1950 cannot be invoked by
the appellants because the same stood repealed by virtue of Section 142(1) of
the 1961 Act.
13. We have considered the
respective arguments. At the outset, we consider it necessary to point out that
the Hyderabad Tenancy and Agricultural Lands Act, 1950 upon which reliance was placed
by Shri Naphade for raising an argument that occupancy rights could not have
been conferred upon the respondents in respect of Inam lands was repealed by Section
142(1) of the 1961 Act, which reads thus: "142. Repeal and savings.- (1) The
enactments specified in Schedule III to this Act, and any other provision of law
corresponding to the provisions of this Act, are hereby repealed: Provided that
save as otherwise provided in this Act, such repeal shall not affect,- (a) the
previous operation of the said enactments or provisions of law or anything duly
done or suffered thereunder; or (b) any right, privilege, obligation or liability
acquired, accrued or incurred under the said enactments or provisions of law;
or 10 (c) any penalty, forfeiture or punishment incurred in respect of any
offence committed against the said enactments or provisions of law; (d) any investigation,
legal proceeding or remedy in respect of such right, privilege, obligation, liability,
penalty, forfeiture or punishment as aforesaid; and any such investigation,
legal proceeding or remedy may be instituted, continued or enforced, and any such
penalty, forfeiture or punishment may be imposed as if this Act had not been
passed: Provided further that any reference in any enactment or other law or in
any instrument to any provision of any of the repealed enactments or provisions
of law shall, unless a different intention appears, be construed as a reference
to the corresponding provision of this Act." The Hyderabad Act, 1955 finds
mention at serial No.2 in Schedule III appended to the 1961 Act.
14. The argument of Shri
Naphade that occupancy rights could not have been conferred upon Basavannappa/respondent
No. 1 because of the prohibition contained in Section 79-A of the 1961 Act is
being mentioned only to be rejected because Abdul Khader did not produce any evidence
before the Tribunal or the learned Single Judge of the High Court to prove that
Basavannappa was a money lender and his income was in excess of the 11limit
prescribed under Section 79-A. The Division Bench of the High Court negatived
this argument by recording the following observations: "The appellants' learned
Advocate vehemently submitted that this is a case in which a fresh or further
enquiry must be held for purposes of determining the exact nature of the
transaction, for purposes of re-evaluating the revenue records by more importantly,
for purpose of deciding everything including the applicability of Sec.79A of
the Act. It was submitted before us that the respondent was a wealthy businessman
even at the relevant point of time and that was really the reason how the appellants
got indebted to him and it was contended before us that was the principal
ground on which the bar under Sec.79A was pleaded before the Tribunal. The appellants
learned Advocate pointed out to us from the order passed by the Tribunal that this
plea had in fact been canvassed but the respondent's learned Advocate was quick
to point out to us that even though the reference was made to this contention,
that the appellants had not substantiated it. We note two things, the first being
that if the appellants pleaded the bar on the ground that the applicant was a wealthy
businessman and that his income exceeded the limit prescribed by the section,
then the onus of establishing this was on the party who pleaded it viz., the appellants.
The Tribunal has recorded in no uncertain terms that this was never done. Secondly,
this plea was never taken up at the appellate stage. It was not even contended
or argued when the writ petition was heard by the learned Single Judge and at
this late point of time if the contention is raised that the entire enquiry
should be re-opened for purposes of ascertaining whether the bar under Sec.79A
would be applicable, our answer to the same is that it would not be legally permissible.
The Court needs to take into account certain factors that emerge from the doctrine
of finality, the first of them being the fact that the stage for holding that investigation
had elapsed, once the Tribunal had given its decision and assuming without
accepting that the appellant still had enough material in support of that plea
under Sec.79A, the last stage in our considered view, for agitating this would
have been when the writ petition was filed and when it was taken for hearing. If
this has not happened, there can be no question at this late stage for re-opening
that 12 issue. This Court will never be technical, but what this Court has to
take cognizance of is the sheer impossibility at this point of time of proving the
income of an opposite party as of the year March 1974 which would be a total
impossibility as far as the appellants are concerned. Secondly, when with regard
to the income limits etc., several amendments have been made to the law over
the years and a Division Bench of this Court has taken a view that these amendments
would be retrospectively applicable. The income limits have therefore been
reasonable point of view. We see no ground on which any useful purpose would be
served by re-opening that issue."
15. We are in complete
agreement with the High Court that having failed to adduce any evidence before
the Tribunal, which could enable it to invoke the prohibition contained in
Section 79-A of the 1961 Act and having failed to raise this plea before the learned
Single Judge, the appellants were not entitled to resurrect the same before the
Division Bench. In any case, in the absence of any tangible evidence, the
Tribunal or for that reason the High Court could not have denied occupancy rights
to Basavannappa or his widow by relying upon Section 79-A of the 1961 Act.
16. The argument that
Basavannappa was not entitled to occupancy rights in respect of Service Inam
Lands, which were governed by the Hyderabad Act, 1955 merits rejection because
no such plea was raised either before the Tribunal or the High Court. We have
carefully scrutinized the pleadings of the writ petition filed by Abdul Khader
before the High Court and the writ 13appeals filed by his legal representatives
and find that neither Abdul Khader nor the appellants challenged the order of
the Tribunal on the ground that occupancy rights cannot be claimed in respect
of the Service Inam Lands, which are governed by the Hyderabad Act, 1955. The counsel,
who appeared on behalf of the appellants and their predecessor before the High Court,
did not raise any such argument. Therefore, there is no tangible justification
to allow the appellants to raise a new plea for the first time, the determination
of which would require detailed investigation into the issue of facts.
17. The concurrent
finding recorded by the Tribunal and the High Court that Basavannappa was in possession
of the land in question since 1957 as a lessee/tenant is amply supported by the
finding recorded by the Arbitrators that Abdul Khader had given the land on
lease for a period of five years at a rent of Rs.500/- per annum. If this was
not so, there was no reason for the Arbitrators to say that the plaintiff, i.e.
Basavannappa shall have to recover the amount by continuing to occupy the land
for 19 years after expiry of the tenure of lease.
18. Before concluding, we
may mention that the appellants have not denied one of the foundational facts,
namely, that their predecessor Abdul 14Khader had initially filed an application
for grant of occupancy right and after remand, he had applied for regrant of the
land in question under Section 5(3) of the 1977 Act. This shows that Abdul
Khader knew that the right/interest flowing from Inam land stood abolished by
virtue of Section 4 of that Act. Therefore, it is futile for the appellants to
contend that the nature of the land continued to be Service Inam and the
Tribunal did not have the jurisdiction to entertain the applications filed by
the respondents for grant of occupancy rights.
19. In the result, the
appeal is dismissed. The parties are left to bear their own costs.
.........................................J.
[G.S. Singhvi]
.........................................J.
[K.S. Panicker Radhakrishnan]
New
Delhi
May
2, 2011.
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