KALYANAPPA SANGANABASAPPA BAGEWADI Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) WE have heard the learned Counsels representing the appellants, the counsels representing the contesting respondents and the learned Government Advocate for respondents 1 and 2 on merits.

(2.) THIS litigation has already gone through an earlier remand and the entire dispute virtually narrows down to one important aspect which the learned Single Judge has taken cognisance of. The appellant though he is not the eldest member of the family and though he is also not designated as the kartha, was the sole applicant when the Form 7 was filed in respect of an area of 12 acres 3 guntas. Subsequently, the contesting respondents who are his brothers also filed Form 7 contending that they are also entitled to proportionate grant of occupancy rights. On 13-10-1981, the Tribunal recorded the finding that the brothers were entitled to joint occupancy rights, and that order was challenged upto the High uourt by the present appellant. We need to record here that it is the case of the appellant that the tenancy vests individually and personally in him, that he has been in occupation and cultivation for over 40 years and the further contention that is raised is that there is secondary evidence to indicate that at various points of time down the years various important functions were undertaken individually by him. The contention raised was that the Tribunal was in error in having granted occupancy rights and the High Court on an earlier occasion set aside the order of the Tribunal and ordered a de novo enquiry. On the second occasion, the Tribunal has passed a detailed speaking order and has on this occasion recorded a finding that the appellant who was the original applicant would be entitled to occupancy rights in respect of an area of 7 acres 3 guntas and that the balance 5 acres has been awarded to the respondents. It is against this order that the appellant has filed a writ petition which has been disposed off by the learned Single Judge through a short order. The learned Single Judge was in total agreement with the findings of the Tribunal and has virtually recorded the fact that since there was on record a partition deed of the year 1959 between the brothers that the apportionment of the rights was justified and that no interference is called for. It is against this order that the present appeal has been filed.

(3.) THE principal submission canvassed by the appellants' learned advocates is that the Tribunal has totally misconstrued the High Court order insofar as what the Tribunal has done is to have done a synthesis of the record, that the Tribunal has ultimately placed very strong reliance on the existence of the partition deed and has brushed aside all the remaining material and has upheld the theory of apportionment. Mr. Patil's submission is that when the High Court ordered a de novo inquiry it presupposes the fact that the High Court was not satisfied with the manner in which the earlier inquiry was held or with the conclusions that were arrived at. To that extent, the learned Counsel is right because the High Court had not only on the earlier occasion remanded the case for reconsideration but had also directed a de novo inquiry, which meant that the Tribunal was required to apply its mind to the entire proceeding afresh. There is a slight difference of opinion between what has been submitted at the Bar by the appellant's learned Counsel and us with regard to the situation that would hold good in the light of such an order. Mr. Patil's submission is that when a de novo inquiry is directed, it really means that the Tribunal is required to start virtually from square one, that the Tribunal is required to build up an entirely new record and that the Tribunal is required to decide the case according to facts and the law on the basis of the material that has emerged on the second occasion. One of the reasons why this submission is advanced is because he has vehemently argued before us that pursuant to the High court orders that a de novo enquiry was held and fresh statements were recorded which position is undisputed and he is seriously aggrieved by fact that the Tribunal seems to have totally disregarded all this material. What we need to point out here is that when the High Court orders a de novo inquiry, undoubtedly the Tribunal is required to start afresh but having regard to the length of time that these proceedings take what one needs to guard against is, a situation whereby all that has happened earlier cannot be ignored. It is very true, as pointed out by Mr. Patil, that the material that subsequently emerges i. e. , documents/statements or for that matter even new evidence will certainly have to be taken into consideration but this does not mean to say that the earlier record is totally obliterated. There may be situations in which in the process of appreciation of evidence some material will have to be culled out, some will have to be disallowed and some will have to be relied upon but what we need to emphasise is that the Tribunal in these circumstances, will always have to follow the procedure of adopting a total approach. We have perused the Tribunal's order and we do find that the Tribunal must have specifically referred to certain particulars of the record. Mr. Patil's submission is that on the second occasion when the respondent's statement was recorded that in cross-examination there is an admission by him to the effect that he does not know what happened pursuant to the partition deed. Learned Counsel submits that this fully supports the submission canvassed at all stages on behalf of the appellant that this partition deed was never given effect to, that no physical partition by metes and bounds has taken place, that in effect therefore, that the partition deed ought not to have been looked at by the Tribunal.