SYED SADIQ Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This is a Revision filed under Section 121A of the Karnataka Land Reforms Act, hereinafter referred to as 'Karnataka Act No.10 of 1962', from the judgment and order dated 2.2.1989 passed in Appeal No.LRF.WP.MYS.APPEAL 745/86, as such by the Land Reform Appellate Authority, Mysore, hereinafter referred to as the 'Appellate Authority', whereby, the Appellate Authority dismissed the appellants appeal and confirmed the order dated 29.6.1976, in Case No.2350/74-75 passed by the Land Tribunal, Mysore Taluk, Mysore, hereinafter referred to as the Tribunal', whereby, the Tribunal has granted occupancy right in favour of late Sri Basheer Beig, husband of opposite party - Respondent No.3 in the present revision over an area of 5 acres 07 gs. of plot No,169 and the area of 7 acres 16 gs. of plot No.171 as well as in respect of the area of 1 acre of P.No. 172, in Devanur Village, in Mysore Taluk, District Mysore.

(2.) The facts of the case in brief are that according to the case of the present revisionists, the above mentioned plots of land belonged to one Syed Mohammed, father of revisionists 1 to 6 and father-in-law of revisionist No.7. According to revisionists, Plot No.169 measuring 5 Acres 7 gs. has been a garden land containing two coconut trees, 43 mango trees and two tamarind trees, while other two Plot Nos. 171 and 172 have been dry lands and these lands have been used to be personally cultivated by the Revisionists and prior thereto by late Syed Mohammed and that they were not leased out at any time in favour of Sri Basheer Beig (now deceased). According to the case of the Revisionists. Basheer Beig, son of Rahim Beig, was a close relative of the petitioners father - Syed Mohammed. That Syed Mohammed died on April 6th, 1960 and that he had executed a will dated 9.9.1959, whereby Syed Mohammed bequeathed the lands in dispute in favour of his sons, that is, Revisionists 1 to 6 and it was also provided for the income to be used for the purpose of public charity. The Revisionists' case is that Basheer Beig, who was a close relative of the Revisionists, with the intention to knock off these properties fabricated certain documents and filed application in Form-7 and in Form-7, he has shown one Syed Gaffar to be the owner of the land. The Revision petitioners denied that there was any person of the name of Syed Gaffar or that he had anything to do with the property in dispute. The Revisionists' further case is that Syed Gaffar was not and has never been in possession of the land in question. Later on, he wanted to amend Form No.7 at subsequent stage stating that the correct name of the person to be impleaded is Sabirah Jan. The Revisionists have further stated that Sabirah Jan was also not the owner and had nothing to do with the land in dispute. The Revisionists have submitted that none of them, that is, the appellants in appeal before the Appellate Authority had notice of that case nor was any notice issued to the present appellants- Revisionists and nor the appellants - Revisionists were made parties to that case, nor any of the appellants - Revisionists had admitted the tenancy rights of late Basheer Beig. According to the present Revisionists, it appears that the notice sent to Syed Gaffar was received by Syed Peer and thereafter, somebody appeared before the Land Tribunal and admitted the alleged tenancy of Basheer Beig and on that basis, the Land Tribunal granted the occupancy rights in favour of Basheer Beig, although he was not a tenant of the land in dispute. That order, according to the Revisionists, was neither a speaking order nor the same had been passed after giving notice to the present Revisionists and the said order was passed without the Revisionists being made a party to the case as well as giving opportunity to them to have their say. As such, the order of the Land Tribunal was illegal, null and void being in violation of the principles of Natural Justice and fair play. According to the Revision petitioners' case, having come to know of that order, the Revisionists challenged that order by filing Writ Petition before this Court in 1983 and thereafter, that Writ Petition was transferred to the Appellate Authority and was registered as a deemed appeal, that is, as Appeal No.LRF.WP.MYS. Appeal 745/1986. The said appeal has been dismissed by the Appellate Authority after having recorded the following findings:-

(3.) I may mention it that the Revision application was listed along with an application for vacation of injunction order dated 17.5.1994, which had been obtained by the opposite party - respondent No.3 and the grievance of the Revisionists' Counsel was that it was obtained without intimation to him of the date on which the application for interim order would be moved. When the application for vacation came to be argued, the learned Counsel for both the parties desired that the Revision being of 1989, be disposed of finally instead of that application and as such, the learned Counsel for the Revisionists as well as for the opposite party - respondent No.3, namely, Sri G.S. Visweswara and Sri Shams A. Pathan respectively were heard at length. On behalf of the Revisionists, it has been submitted as under: a) That the order passed by the learned Tribunal had been passed behind the back of the appellants - Revisionists as well as without giving notice to the Revisionists and also without giving an opportunity of hearing to the Revisionists and as such, that order has been illegal null and void as well as has been in violation of the Rules of Natural Justice and fair play as well as has been in contravention and in violation of Rules 17 and 19 of the Rules framed under the Karnataka Act No. 10 of 1962. The learned Counsel for Revisionists submitted that the Appellate Authority has found that the procedure followed by the Tribunal was in contravention of Rules 17 and 19 of the Karnataka Act No.10 of 1962 and that Tribunal has not given any reasons for granting occupancy rights in favour of Basheer Baig and the impugned order of the Tribunal is not speaking one. The Revisionists' Counsel further submitted that the occupancy rights as such had been illegally granted by the Tribunal on assumption of facts not warranted by the Court, the Tribunal has no doubt mentioned that Syed Peer admitted the tenancy of Bashesr Beig but the Appellate Authority has very clearly mentioned in its order that 'but, the Tribunal's files does not disclose any such statement as said to have been given by Syed Peer', In this view of the matter, the order of the Tribunal has been based on no evidence or material on record and as such, the Tribunal's order did sutter from jurisdictional error and its findings were vitiated by illegality. As there is no such statement on the record as is alleged to nave been given by Syed Peer, Sri visveswara in this context further .submited as such Tribunal's order has been in violation of the principles ot Natural Justice as it had been passed without issuing notice to ail the heirs of Syed Mohammed, that is, the present Revisionists, it has been illegal, null and void order apart from the order of the Tribunal being non-speaking one, and so it was the duty of the Appellate Authority to have set aside the order passed by the Land Tribunal and in not doing so, the Appellate Authority committed jurisdictional error amounting to failure to exercise jurisdiction vested. Sri Visveswara further submitted that Basheer Beig was closely related to Syed Mohammed as well as to the appellants and the finding that Basheer Beig was presumably cultivating the land in dispute is a presumptive finding on certain statement to the effect that all of them were cultivating the land in dispute, that is, the appellants and along with them, Basheer Beig was cultivating and it is nothing but he was helping the children of Syed Mohammed. Anyway, learned Counsel further submitted that land was not let out to Basheer Beig by any one neither by Syed Mohammed nor by Syed Peer and Gutta Karar, that is, the Lease Deed dated 28.4.1958, which has been the very basis of the claim on behalf of the respondent No.3, that is, the wife of Basheer Beig, has not been legally proved by legal and admissible evidence. There is no evidence on record of execution of the document by Syed Mohammed nor is there any evidence proving the signatures of Syed Mohammed on the document and as Syed Peer's signatures have also not been proved nor that it has been shown that he executed the lease of the land nor could it be proved that he could execute any lease deed of the land belonging tc Syed Mohammed. There is no proof of his authority to execute the lease even if somebody had proved the signatures. The learned Counsel for the Revisionists contended that lease being the contractual document its execution is to be proved by the oral evidence consisting of the witnesses, who have seen the executant - Syed Mohammed entering into the contract and executing the Deed and signing the Deed in proof of execution thereof. He submitted that none of the witnesses have so stated that Agreement of Lease was entered into in his presence and that Syed Mohammed did sign the document in his presence or that he was well conversant with the signatures of Syed Mohammed or had seen him signing at times and so recognises the signatures. The learned Counsel for the Revisionists submitted that in this view of state of affairs any bare statement that document contains signature of Syed Mohammed is inadmissible in law and so the finding regarding tenancy recorded by the Tribunal is vitiated by error of law in the sense that it has been arrived at after having placed reliance on a document, the execution of which has not been proved in accordance with law. As such, the order impugned suffers from another illegality and material irregularity in exercise of jurisdiction. Learned Counsel for the Revisionists, namely Sri Viesveswara invited my attention to the provisions of Section 60 of the Indian Evidence Act. On behalf of the opposite party - respondent No.3, it has been contended by Sri Shams A Pathan, learned Counsel that this is a Revision Petition. The revisional jurisdiction of this Court is not as wide as that of an Appellate Court. It is circumscribed and limited by the conditions prescribed and specified in Section 121-A of the Karnataka Act No.10 of 1962 and the present case i.e., the Revision concerned is not one which can be said to be covered within the scope of Revisional powers of this Court under Section 121-A of the Act, as such, Revision is liable to be dismissed. Sri Pathan submitted that in every case finding has been recorded by the Tribunal that Basheer Beig had been cultivating the land. He further submitted that finding to the effect that Basheer Beig had been cultivating the land is a finding of fact. Sri Pathan further submitted that execution of Ex.B4 and signatures of Syed Mohammed and Syed Peer thereon that is, Exs.B4(A) and B4(B) have been established and the finding that Ex.B4 has been proved is a finding of fact not open to interference under Section 121-A of the Act by this Court. He further submitted that on the basis of other evidence oral and documentary, the Appellate Authority has recorded a finding to the effect that land in dispute was tenanted one and it was tenanted to Basheer Beig on the appointed day is also a finding of fact and as such, the final finding to the effect that the disputed land was tenanted one as on 1.3.1974, as well as prior to that date is also a finding of fact and the said findings do not call for interference by this Court, particularly in exercise of Revisional jurisdiction. Sri Pathan, referred to the statement of R.W.1 to the effect that Ex.B4(A), is signature of Syed Mohammed and that Ex.B4(B) is the signature of Syed Peer and after referring these signatures, Sri Pathan, submitted that R.W.1 has proved the signatures and execution of the Deed. Sri Pathan further submitted that the document being 30 years old, presumption under Section 90 of the Evidence Act can be raised in favour of the execution of the document. Therefore, it has to be presumed to have been executed even if there is no evidence to the effect that the witnesses had seen Syed Mohammed signing the document in question, that is, the Lease Deed nor is there any statement to the effect that R.W.1 had seen earlier Sri Mohammed signing the documents and on that basis, he recognised. He - submitted that even in the absence of such an evidence, under the provisions of Section 90 of the Evidence Act, the presumption goes in favour of its execution by Syed Mohammed or Syed Peer. Sri Pathan also tried to support the judgment relying on the doctrine of deemed tenancy referred in Section 2 sub-section (34) and Section 4 of the Karnataka Act No. 10 of 1962. Sri Pathan further submitted that other documentary evidence consisting of Exs. B5, 6, 8, 9. and 11 coupled with other evidence and cultivation proved the tenancy. In his arguments as rejoinder Sri Visveswara submitted that it does not stand proved that Ex.B4 was signed by Syed Mohammed or Syed Peer as the same could be proved by person, who has seen the transaction in question being entered into and who has witnessed the transaction and the execution of the Deed including signing thereof by Syed Mohammed or by a person well conversant with the signatures of Syed Mohammed as having seen him signing on earlier occasion. There being none and R.W.1 did not depose anything like that she had always witnessed Syed Mohammed signing the document and was so well conversant with the signature nor she having deposed that Deed was signed in her presence to prove the execution and as such, the finding that execution of Deed has been proved has been arrived at illegally and therefore, finding is based on either no evidence or on no admissible evidence as so the decision and findings recorded by Tribunal as well by Appellate Authority as well are vitiated by jurisdictional error and illegality and in every case, it suffers from material irregularity which irregularity has resulted in substantial erroneous decision in law. Sri Visveswara further submitted that Section 90 of the Evidence Act is not applicable and further it is not mandatory on the Court to draw that presumption and in this connection, he has referred to a Decision of the Allahabad High Court in RAM MILAN vs SHER BAHADUR. Sri Visveswara further submitted that in order to claim the benefit of Section 2(34) and Section 4, it was necessary to have pleaded the necessary ingredients as well as it was incumbent on the opposite party to have established those ingredients. At the Revisional stage Sri Visveswara submitted that it is not open to the opposite party - respondent No.3, to raise that plea He submitted that in order to claim benefit of Section 4, one has to establish that he had been lawfully cultivating the land belonging to another, if such land is not cultivated personally by the other. This not having been alleged or established by the opposite party - respondent No.3, there is no question of opposite party No.3 being tenant.