RAMACHANDRA KRISHNA BHATTA Vs. STATE OF KARNATAKA

JUDGEMENT

(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.