DATTAPPA Vs. DASHARATH

JUDGEMENT

(1.) PETITIONER, now represerted by his legal representatives, being aggrieved by the order dated 14th September, 1989 on the file of the Land Reforms Appellate Authority, Bijapur in L. R. '- No. 68 of 1989, setting aside the order passed by Land Tribunal, Bijapur, dated 31st January, 1989 in no. KLR. SR. 220, has presented the instant revision petition.

(2.) THE deceased Tulajaram also, represented by his legal representatives as respondents 1 to 6 herein, claiming to be tenant, had filed Form 7 under Rule 20 (1) of the Karnataka Land Reforms rules, 1974 read with Section 48-A (1) of the Karnataka Land Reforms Act, 1961 for registration of occupancy rights on 30th June, 1976. The said application filed by deceased Tulajaram had come up for consideration before the Land Tribunal, Bijapur on 15th March, 1979. The Land tribunal, has ordered for registration of occupancy rights in favour of deceased Tulajaram in respect of an extent of 4 acres 3 guntas in Sy. No. 471/2c (03 guntas of pot kharab), holding that, the land in question is a tenanted land and the same vested in Government as on the relevant date and therefore, he is entitled for registration of occupancy rights in his favour. Aggrieved by the order passed by the Land Tribunal, Bijapur, dated 15th March, 1979, the petitioner herein filed a Writ Petition No. 6143 of 1981 before this Court. The said writ petition had come up for consideration before this Court on 5th October, 1982 and the writ petition filed by petitioner was allowed and the order passed by Land Tribunal was set aside and the matter was remitted back to the Land Tribunal for fresh disposal in accordance with law. After remand, the matter was taken up for consideration by the Land Tribunal, Bijapur on 31st January, 1989. The Chairman and another member of the Land Tribunal have opined that, the deceased Tulajaram was cultivating the said land as tenant and the said land vested in Government as on the relevant date. However, in view of the opinion of the majority members of the Land Tribunal that, deceased Tulajaram was not a tenant and the application filed by deceased Tulajaram was liable to be rejected, the land Tribunal rejected the application filed by deceased Tulajaram. Assailing the correctness of the order passed by the Land Tribunal, Bijapur, dated 31st January, 1989, the respondents 1 to 6 herein, who are the legal representatives of deceased Tulajaram filed an appeal on the file of the land Reforms Appellate Authority, Bijapur (hereinafter called the 'appellate Authority'), in l. R. A. No. 68/1989. The Appellate Authority, after evaluation of oral and documentary evidence, and after careful perusal of the record of rights in Sy. No. 471/2c for the agricultural years 1953-54 to 1958-59, wherein the name of deceased Tulajaram appeared as cultivator and in other rights column, his name has been shown as protected tenant, has passed the impugned order. Further, as per the mutation entry No. 2760, the name of deceased Tulajaram is shown as protected tenant. Further, the Appellate Authority has specifically recorded a finding of fact that, as per the mortgage dated 5th May, 1959, the deceased Tulajaram was already in possession of the suit land and therefore, he secured the record of rights in respect of the suit land bearing Sy. No. 471/2c and also Sy. Nos. 471/2b and 471/2a and in respect of two others strips of land, i. e. , sy. Nos. 471/2a and 471/2b, it is found that, the owner is cultivating those two lands. From form 7 filed by deceased Tulajaram, the original of which is available in the original records, it can be seen that, the deceased Tulajaram has not sought for registration of occupancy rights in respect of another two survey numbers namely Sy. No. 471/2a and Sy. No. 471/2b. He has filed form 7 for registration of occupancy rights only in respect of Sy. No. 471/2c. Petitioner has failed to produce any rebuttal evidence to establish that, deceased Tulajaram never cultivated the said land as tenant. The Appellate Authority, after giving cogent reasons, with reference to credible documentary evidence, at paragraph 9 of its order, by its order dated 14th September, 1989, allowed the appeal filed by respondents 1 to 6 herein and set aside the order passed by land Tribunal and registered the occupancy rights in favour of respondents 1 to 6 herein, who are the legal representatives of deceased Tulajaram in respect of Sy. No. 471/2c, measuring 4 acres 6 guntas (including 3 guntas pot kharab) situate at Mahalbagayat, Bijapur Taluka. Being aggrieved by the said order passed by the Land Reforms Appellate Authority, petitioner herein, represented by his legal representatives felt necessitated to present the instant revision petition.

(3.) THE principal submission canvassed by learned Counsel for petitioner is that, the deceased tulajaram had, at no point of time, cultivated the land in question as tenant. Due to financial constrains, petitioner, has mortgaged the property vide mortgage deed dated 5th May, 1959 and after expiry of the period mentioned in the mortgage deed, the land has been redeemed and possession has been handed over to him under the registered deed dated 25th June, 1966 and he has also endorsed at the back of the deed that, he has handed over the possession of all the three lands in favour of petitioner. He submitted that, this aspect of the matter has not at all been considered by the Appellate Authority, but, the Land Tribunal, had rightly appreciated and rejected the claim of deceased Tulajaram for registration of occupancy rights in respect of the land in question. Further, he has taken me through the observation made by the Appellate authority at internal page 8 of its order and pointed out the observation made by the Appellate authority wherein it is stated that, as per the checklist, there is no mention that, the name of deceased Tulajaram appeared in the record of rights prior to 1959 as tenant and the name of deceased Tulajaram appeared in the year 1964-65 in the record of rights but not as tenant. He submitted that, if the said checklist is taken into consideration, verified and scrutinized carefully, it shows beyond all reasonable doubts that, the deceased Tulajaram never cultivated the land as tenant and hence, he is not entitled for registration of occupancy rights. Therefore, he submitted that, the order passed by the Appellate Authority is liable to vitiate. To substantiate his aforesaid submission further, he placed reliance on the judgment of this Court in the case of Huchegowda v. Channamma and Ors. 1988 (3) Kar. L. J. 252 and submitted that, if the ratio of law laid down by the learned Single Judge of this Court in the said decision is taken into consideration, the reliance placed by the Appellate Authority on the entries found in the RTC extract for the years 1954-55 to 1958-59 to show that, deceased Tulajaram was cultivating the land as tenant, is not sustainable and hence, it is liable to be set aside.