SHIDDAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) IN this petition filed under Articles 226 and 227 of the Constitution of india, the petitioner-landowners have called in question the correctness of the order dated 23rd of July, 1993 passed by the Land Tribunal, hubli, granting occupancy right in respect of 3 acres 8 guntas of land in survey No. 155/1a (old No. 20/1a) situated at Gabbur Village, Hubli taluk, Dharwad District, in favour of the third respondent.

(2.) SRI Ashok Kalyan Shetty, learned Counsel for the petitioners, challenging the correctness of the order Annexure-F, made five submissions. Firstly, he submitted that since there is no claim made by the third respondent in respect of the land measuring 3 acres 8 guntas in Survey no. 155/1a (20/1a), the second respondent-Tribunal had no jurisdiction to grant occupancy right in respect of the said land in favour of the third respondent. Secondly, he submitted that the impugned order is vitiated on the ground that the Tribunal has failed to consider the documents dated 31st of July, 1966, 23rd of September, 1964 and 6th of February, 1967, copies of which have been produced as Annexures-C, D and E respectively, along with other oral evidence adduced in the case. Elaborating this submission, he pointed out that if the contents of Annexures-C to E are taken into account, the said documents would only show that it is only 'undu Biduva Kararu' and not 'lease'. Sri Kalyan Shetty, in support of his plea that 'undu Biduva Kararu' is only a mortgage, but not lease, relied upon the decision of this Court in the case of Veerappa rudrappa Alagawadi v The Land Tribunal and Another. He further submitted that in Annexure-E, the petitioner had agreed to sell the land in question to the third respondent; and under these circumstances, the tribunal ought to have held that the continuance of possession of the land in question by the third respondent from the date of execution of the agreement to sell, is not that of a tenant, but only as a person in possession of the land in question pursuant to the agreement to sell executed by the petitioners. Thirdly, he submitted that admittedly, the documents Annexures-C and D came to be entered into between the first petitioner and the father of the third respondent; and since the father of the third respondent died in the year 1970, the third respondent is not entitled to be registered as an occupant in respect of the land in question as there was no relationship of landlord and tenant between the petitioners and the third respondent subsequent to the death of the father of the third respondent. According to him, the application Form 7 filed by the third respondent was totally misconceived and unsustainable in law as he would not acquire the status of a tenant. Fourthly, he submitted that admittedly, the documents Annexures-C and D came to be executed only by the first petitioner in favour of the father of the third respondent; since the land in question, is an ancestral property, the second petitioner acquired one-third share in the land in question subsequent to the death of the father of the petitioners; and under these circumstances, even if the documents Annexures-C and D are construed to be a lease of the land created by the first petitioner in favour of the father of the third respondent, the said lease cannot be binding on the second petitioner and as such, the order impugned to the extent of one-third of the second petitioner is liable to be quashed. Finally, he submitted that the order impugned is not a speaking order. According to him, the Tribunal, except referring to the statement of the parties and their witnesses, has not assigned reasons in support of its conclusion.

(3.) HOWEVER, Miss Syeda Irfana Bulquees, learned Counsel appearing along with Sri Ganiger, for the third respondent, supported the impugned order strongly repelling each one of the submissions of Sri Ashok kalyan Shetty. She submitted that there is absolutely no merit in the contention of the petitioners that there is no claim made by the third respondent for grant of occupancy right in respect of the land in question. It is her submission that it is not the case of the petitioners either in the statements made by them in the course of the proceedings before the Tribunal or in the statements made by their witnesses, that there is no claim made by the third respondent in Form 7 filed by him for grant of occupancy right in respect of the land in question. She also pointed out that even in the notes of arguments filed on behalf of the petitioners, there is no contention raised that the third respondent has not made any claim in Form 7 for grant of occupancy right in respect of the land in question. She would also submit that in Writ Petition No. 13113 of 1977 filed by the third respondent challenging the order passed by the Tribunal rejecting his claim for grant of occupancy rights, the petitioners did not raise any objection contending that there is no claim made by the third respondent in respect of the land in question; and in the said writ petition, as this Court had directed the Tribunal to consider the claim of the third respondent in respect of the land bearing Survey No. 155/1a, the petitioners cannot be permitted to contend that there is no claim made by the third respondent for grant of occupancy right in respect of the land in question.