PAMELA LAKSHMINARAYANA Vs. KAMALAMMA

JUDGEMENT

(1.) THIS is the owners' revision being aggrieved of the order passed by the Land Reforms Appellate Authority, Mysore in LRF/mys/appeal No. 53 of 1988, dated 26-11-1988 dismissing the appeal by confirming the order of the Land Tribunal, Mysore in KLR No. 1700/74-75 vesting the land with the Government under Section 44 of the Land Reforms Act, 1961.

(2.) THE brief facts of the case are as follows. One Sri Hariyachar was the owner of the lands of different survey numbers situated at Varuna, janthagalli and Dandikere Village of Mysore Taluk, called as Varuna estate. In respect of the lands, the tenant namely, Sri R. Chinnaswamy goundar filed Form 7 for grant of occupancy claiming to be the tenant. But, much prior to the filing of Form 7, Lakshminarayana S/o. Hariyachar initiated legal proceedings for resumption of land under Section 29 of the Mysore Tenancy Act, 1952. The litigation between the owner and the tenant which commenced during 1961 came to an end by an order of resumption in favour of Lakshminarayana in Case No. TC:163/60-61, dated 6-2-1974. While it is so, the Land Tribunal in KLR no. 1700/74-75 by its order dated 23-9-1981 ordered for grant of occupancy to the extent of 54 acres and vesting the remaining extent of land of Varuna Estate. The Land Tribunal, by its order dated 17-9-1981 posted the case to 23-9-1981 for pronouncement of the order. Immediately, the landlord approached this Court in W. P No. 20351 of 1981 seeking for a writ of prohibition to the Land Tribunal not to proceed with the consideration and disposal of the application made by the respondent. This Court, by an order dated 22-9-1981 granted an interim order restraining the Land Tribunal from proceeding with the disposal of the application. Despite the order of this Court, the Tribunal pronounced its order allowing the application of the tenant on 23-9-1981 granting occupancy to the extent of 54 acres and resuming the remaining extent in favour of the State. That various orders of the Land Tribunal, Tahsildar, Mysore Taluk and the Assistant Commissioner between the tenant and the landlord were questioned before this Court. Therefore, all the matters were taken up together by the Division Bench of this Court in W. P. Nos. 1078 of 1975, 5824 of 1978 and 20351 of 1981 with W. A. No. 828 of 1985. After considering the matter at length, the division Bench of this Court disposed off all the litigations by a common order dated 16-12-1985 with certain observations as mentioned in para 68 and remanded the matter for fresh disposal with a direction to bring the L. Rs of the tenant Chinnaswamy Goundar on record. The Land tribunal, Mysore took up the matter for fresh disposal and the L. Rs of chinnaswamy Goundar namely, Smt. Kamalamma, the wife, as well as the daughters Saraswathi residing at Dandikere, Mysore Taluk and another daughter Smt. R. Rajeshwari W/o. Vajra residing at New Bambu bazar, Mysore were brought on record. It appears that the L. Rs of chinnaswamy Goundar filed an application under Section 151 of the cpc with an affidavit of Smt. Kamalamma, dated 12-10-1987 praying permission to withdraw the petition as not pressed. The Land Tribunal after considering the contentions of the landlord held, in view of Section 44 of the Land Reforms Act and also in the light of the orders passed by the Division Bench, the tenants have lost their right for grant of occupancy. Accordingly, ordered for the vesting of the land to the State to the extent of 99 acres 33 guntas in various survey numbers situated at varuna Village, Dandikere Village and Janthagalli Village called as "varuna Estate". The landlord questioned the order of the Land Tribunal "vesting of land" before the Land Reforms Appellate Authority in lrf/mys/appeal No. 53 of 1988. The Appellate Authority dismissed the appeal by its order dated 26-11-1988 confirming the order of the Land tribunal. It is this order which is now questioned by the landlord in this revision.

(3.) THE learned Counsel Sri Joshi for the landlord/revision petitioner vehemently contended that when once the tenants have withdrawn the claim, the question of vesting of the land with the State does not arise. That apart, even before pronouncing an order by the Land Tribunal, dated 23-9-1981 this Court granted an interim order of stay on 22-9-1981. Therefore, the matter kept open for considering the rights of tenancy which was not adjudicated by the Tribunal earlier. Even otherwise, the order dated 23-9-1981 has become infructuous as an interim order granted in W. P. No. 20351 of 1981. Secondly, contended that from the impugned order of the Land Tribunal as well as Appellate Authority, it is not forthcoming what actually the extent of land that was under cultivation by the tenant and whether the land in question was actually under cultivation or left fallow. Therefore, without there being a proper enquiry and local inspection of the spot, the order of the Land Tribunal, as well as the order of the Appellate Authority vesting of the land with the State is erroneous and not sustainable. It is also contended that the owner Lakshminarayan and his father Hariyachar have put up construction of the farmhouse and they have also dug borewell and installed pumpset. The constructed area of the farmhouse, cannot be the subjectmatter of tenancy and that the Land Tribunal has not inspected the spot at all. Lastly, contended that the lands were left fallow. Therefore, without cultivating the land that an application for grant of occupancy is not maintainable. That apart, the tenant cannot claim occupancy in respect of the uncultivated land. It is on account of the default of payment of rent, damaging the property, sub-leasing the property and leaving the land fallow much earlier to 1961 itself, the landlord initiated proceedings for resumption of the land under the Mysore Tenancy Act, 1952. The order of resumption passed in case No. 163/60-61, dated 6-2-1974 has been confirmed by the Division Bench of this Court. This makes clear that the tenants were never cultivating. Therefore, the order of the land Tribunal as well as the Appellate Authority vesting of the land is not sustainable. The learned Counsel Sri Joshi further contended that the application filed by the L. Rs of Chinnaswamy Goundar for withdrawal of their claim is of no consequence as the possession of the lands were taken in pursuance of the eviction order dated 6-2-1974. When the tenants have not justified their claim, and having left the land fallow, it is erroneous on the part of the Land Tribunal to order vesting of the land with the State. On these grounds, the learned Counsel Sri Joshi prayed to set aside the order of the Land Tribunal as well as the Appellate Authority.