BHAVERA KENCHAPPA Vs. B RAGHAVENDRACHAR

JUDGEMENT

(1.) BY this petition the petitioner has prayed for issuance of a writ of certiorari under Articles 226 and 227 of the Constitution of India to quash the order dated 17-5-1996 passed by the 4th respondent-Tahsildar, Taluk Honnali.

(2.) THE facts of the case in a nutshell are that the land in question were regranted in favour of B. Raghavendrachar, s/o Narasimhachar and others by the Assistant Commissioner, Shimoga Taluk, vide an order dated 10-3-1969. The lands which are granted in favour of (a) B. Narasimhachar were Sy. No. 60, extent 11 guntas; Sy. No. 52, extent 3 acres 24 guntas and Sy. No. 140, extent 3 acres 10 guntas as well as Sy. No. 126, extent 2 acres 20 guntas; (b) Hanumantha Rao, was granted the land in Sy. No. 52 extent 3 acres 23 guntas; Sy. No. 126, extent 2 acres 30 guntas and Sy. No. 140, extent 3 acres 15 guntas; and finally (c)B. Gururayachar the lands in Sy. No. 69 extent 31 guntas; Sy. No. 126 extent 2 acres 30 guntas and Sy. No. 140, extent 3 acres 39 guntas and sy. No. 140, extent 3 acres 10 guntas. That the petitioner has asserted and alleged in the petition that he had purchased an extent of 4 acres of land from the grantees i. e. , respondents 1 to 3, under an agreement to sell dated 1[5-9-1969] and has since then been in possession and by virtue of order dated 26-8-1977 the Land Tribunal under Karnataka land Reforms Act, allowing the petitioner's claim confirming the occupancy rights in respect of aforesaid land vide Annexure-B i. e. , order dated 26-8-1977.

(3.) AN application was moved by the grantees that the present petitioner who was the respondent before the Tahsildar, was in unauthorised possession of the land and requested that this respondent i. e. , present petitioner in the writ petition, be evicted from the said lands and the lands be restored by proceedings under Section 5 (6) of the Karnataka Village Offices Abolition Act. The proceedings were initiated and enquiry was conducted. Written statement of the parties along with documents were entertained and after perusal of the records, the tahsildar upheld the claim of the present respondents. The Tahsildar held that it is an admitted fact that Mariyamma Basappa was in possession of Sy. Nos. 52 and 126 as per agreement to sell dated 2-1-1960 till her death and thereafter Manjappa s/o Rudrappa has been in possession till date and it is, also an admitted fact that B. Kenchappa s/o Nagappa as per agreement to sell dated 5-9-1965 has been in possession and cultivation of 4 acres of land of Sy. No. 140 and it is established that opposite parties before the Tahsildar were in possession under agreement to sell. It is further held that the land in Sy. Nos. 126, 52 and 140 were transferred subsequently by sale transactions vide deeds dated 25-6-1969 and 1-12-1969 within fifteen years from the date of regrant made on 10-3-1969, without depositing or paying occupancy at 21 times of land revenue as well as without previously by obtaining the permission or approval of Government. It held as such the agreement to sell dated 5-9-1965 is concerned benefit of regrant cannot be made available in view of Section 5 (6) which says that such an agreement which have been entered into for sale before the regrant order under Section 5 (6) of the Act, shall be null and void and any person in possession and occupation of the lands under such agreement to sell shall be liable to be summarily evicted by the Deputy Commissioner. The Tahsildar has said that benefit of Section 5 (6) of the Act will be available to applicant before it (present respondent) and the person who is in occupation under a null and void agreement of sale is liable to be evicted and therefore ordered eviction of the present petitioner vide its order dated 17-5-1996. Feeling aggrieved from that order the person in occupation of the lands in question i. e. , Bhavera Kenchappa-present petitioner, earlier filed appeal before District Judge and the District Judge dismissed the appeal as not maintainable by an order dated 30-6-1998 and thereafter the petitioner has come up before this Court by this petition under Articles 226 and 227 of the Constitution of India.