MALLAPPA AND RAMESH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE Petitioners' father by name Basavanneppa Kabanur and the father of respondent No. 3 are said to be brothers. Father of respondent No. 3 filed a declaration in form No. 7 - Annexure A under Section 48-A of the Karnataka Land Reforms Act, 1961, (for short the Act) for being registered as an occupant of land measuring 2 acres in S. No. 42/3 of Kalkatte village, Shiggaon taluk. Haveri District, being a member of the joint family consisting of himself and his brother basavanneppa Kalappa Kabanur. During the pendency of the proceeding, before the Land tribunal the declarant died and his son, the respondent No. 3, herein, the legal representative, was brought on record. The father of the petitioners, by way of abundant caution, filed a representation dated 8. 10. 97 Annexure - D, requesting the Land Tribunal to consider the grant of occupancy rights jointly in favour of the declarant as well as himself. It is alleged that the Land tribunal without reference to either the statement made in column No. 8 of the declaration annexure - A or the representation Annexure - D passed the order impugned granting occupancy rights in favour of the legal representative of the deceased Fakirappa Kabanur, the lather of respondent No. 3. Hence this Writ Petition.

(2.) THE petition is opposed by filing statement of objections dated 5. 12. 1997 of respondent No. 3, interalia contending that the father of the petitioners and the declarant, though brothers, had separated long before the filing of form No. 7 and that the mere mention in column 8 of the declaration is insufficient to establish joint tenancy. In addition, it is contended that the petitioners having instituted OS 177/94 (Old No. 78/91), for partition, which is suppressed, coupled with the fact that the Land Tribunal has no jurisdiction to try the issue, as to whether the tenancy was claimed on behalf of the joint family, the writ petition is not maintainable.

(3.) LEARNED Counsel for the petitioners contends that the Land Tribunal fell in error in not noticing the statement made in column No. 8 of the declaration that the declarant Fakirappa, as a member of the joint family and his brother by name Basavenneppa i. e, the father of the petitioners, had together cultivated the lands in question. According to the learned Counsel, the explanation 11 to Section 2 (11) of the Act provides that "to cultivate personally" is deemed cultivation by a member of a joint family and the Tribunal ought to consider the question as to whether the cultivation of the land was done by the declarant or jointly along with his brother basavanneppa, on the material placed on record. Learned Counsel would hasten to add that such a question is beyond the jurisdiction of the civil court and hence, the order impugned suffers from the vice of failure to exercise a jurisdiction vested in the Tribunal, tantamounting to denial of justice.