PATEL RUDRAPPA Vs. JADIYAPPA

JUDGEMENT

(1.) In this petition under Article 226(1) (b) and (c) of the Constitution, the petitioner who is the owner of the land bearing Sy.No. 41/2 measuring 1 acre 13 guntas, situated at Gangur village in Tarikere taluk, has challenged validity of the older dated 29-8-1978 passed by the Land Tribunal, Tarikere, in case No LRT 2/7G-77 granting occupancy right in favour of the first respondent.

(2.) Sri J.S.Gunjal, the learned Counsel appearing for the petitioner, contended that long prior to the passing of theimpugned order by the Tribunal, the first respondent himself filed an application before the Land Tribunal on 22-1-1977 stating that, the application in Form No. 7 was filed by him under a mistaken notion of facts and that he may be pemitted to withdraw the said application as he had not taken the land for cultivation on lease from the petitioner and as such his application he rejected. According to the contention of the learned Counsel for the petitioner, the Tribunal has passed the impugned order without taking into consideration the application filed by the first respondent. In support of the aforesaid contention, the learned Counsel submitted that the land in question originaly belonged to one Gangamma, who had two daughters by name Basamma and Maheswaramma. Gangamma sold the land in question in the year 1963 to one Seshappa who in turn sold the said land to the petitioner on 29-2-1964. Maheswaramma, as already pointed out, is one of the daughters of Gangamma,. Though she had no right title and interest whatsoever in the land in question, nevertheless sold the same to one Mullappa son of Thimrnaiah on 24-12-1963 under a, registered sale deed. The said Mudlappa, on the basis of the said sale deed, filed civil suit bearing O.S. No. 144 of 1964, in the Court of the Munsiff. Tarikere, for a declaration of title and for possession of the land in, question against the petitioner and Gangamma and her two daughters Basamma and Maheswarramma and also against thq first respondent and the legal representatives of Seshappa. The trial Court decreed the suit and the lower appellate Court confirmed the said decree. But the petitioner preferred RSA No. 793 of 1972 to this Court and obtained an order of stay. Ultimately, the R.S.A. 793/72, came to be allowed on the basis ot the compromise arrived at by the parties and the de,cree passed by the trial Court and confirmed by the lower appellate Court, was set aside and the suit of Mudlappa was dismissed.

(3.) After the decree passed by this Court in the aforesaid Regular Second Appeal, the first respondent filed an application referred to earlier to dismiss his application filed in Form No. 7. The Tribunal without taking into consideration the said application, has passed the impugned order on the ground that the petitioner has admitted the cultivation of the land in question by the first respondent as a tenant. The contention of the petitioner in this regard is that no statement was recorded by the Tribunal and his signature was taken in the blank paper and the same appears to have been converted into a statement It is not necessary now to go into the correctness of this contention in view of the fact that the first respondent who had filed an application to dismiss his application filed in Form No. 7 on the ground that he was not a tenant, the Tribural could not have proceeded with the matter without first considering that application. The Tribunal will have jurisdiction to deal with the matter for grant of occupancy right only when there is an application in Form No.7. That being so, when the applicant himself submitted before the Tribunal that he had filed the application in Form No. 7 only under a mistaken notion and that he be permitted to withdraw the application as he never cultivated the land as tenant, it was the duly of the Tribunal to consider that application first before, considering the application filed in Form No.7 on merits. That being so, the order passed by the Tribunal, cannot be sustained and the same is hereby quashed.