KALLI HUTCHA NAYAKA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE petitioners, questioning the legality and the validity of the order dated 24th September, 1993 in case No. LRF:1835/75-76 on the file of the Land Tribunal, Nanjangud Taluk, in respect of land bearing Sy. No. 260/2 measuring 02 acres 19 guntas situate at Karya Village, Nanjangud Taluk, Mysore District, have filed the instant writ petition.

(2.) THE deceased petitioner-Sri Kalli Hutcha Nayaka, claiming to as a tenant in respect of land bearing No. 260/2 measuring 02 acres 19 gumtas situate at Karya Village, Nanjangud Taluk, Mysore District had filed form 7 for grant of occupancy rights. The said application of the deceased petitioner had come up for consideration before the Tribunal and the Tribunal, after hearing had granted occupancy rights in favour of the deceased petitioner. However, being aggrieved by the said order passed by the Land Tribunal, the third respondent herein filed a Writ petition No. 25484 of 1981. This Court by its order dated 15th June, 1981 had set aside the order passed by the Land Tribunal and remitted the matter back to the Land Tribunal for reconsideration afresh. After remand, the Land Tribunal conducted the enquiry in strict compliance of i rule 17 of the Karnataka Land Reforms Rules ("rules" for short), after recording the evidence of the parties and after considering the oral and documentary evidence, after going through the recital in the Usufructuary Mortgage vide Annexure-A, has rejected the claim of the petitioner on the basis of the opinion of the majority members (Chairman and two members) of the Tribunal. The Chairman and two members have held that, the petitioner has failed to establish that as on 1st March, 1974 and prior to that, he was cultivating the said land as tenant. The earlier specific finding is that, the mortgage executed between the deceased petitioner and the third respondent is in the nature of a Usufructuary mortgage and there is no relationship of tenant and owner. But, however, the other two members have said that, the petitioner is entitled for registration of occupancy rights. Feeling aggrieved by the said order passed by the Land Tribunal, the petitioner had presented the instant writ petition. During the pendency of this petition, the petitioner died on 19th July, 1995 and his present L. Rs are brought on record.

(3.) THE principal ground urged by the learned Counsel for the petitioners in the instant writ petition is that, the Tribunal has failed to conduct the enquiry as envisaged under Rule 17, Rules read with Section 34 of the Karnataka Land Revenue Act. Therefore, the impugned order passed by the Tribunal is vitiated and submitted that, majority members of the Tribunal have committed an error in not relying upon the Usufructuary Mortgage vide Annexure-A, on the ground that, it is not a registered document. Further, he submitted that, the Tribunal has failed to note that, the third respondent has admitted the Ili bhogya deed but the fact remains that, the petitioner continues to be in possessi on of the land in question even as on today and hence, the land in question as on 1st March, 1974 vested with the State Government as per section 44 of the Act and therefore, the petitioners are entitled for registrati on of occupancy rights as envisaged under Section 45 of the Act. The tribunal has committed an error in not considering this aspect of the matter and has held that, the deceased petitioner is not entitled for registration of occupancy rights in respect of the land in question, contrary to the material on record. Further, it is specifically contended that, the Ili bhogya is advance lease and the person in possession of the land in question under the Ili bhogya deed is entitled for registration of occupancy rights under the Karnataka Land Reforms Act. On this ground also, the impugned order passed by the Land Tribunal is liable to be set aside.