Judgment:
ORDER
M.M. Mirdhe, J.
1. This Writ Petition is filed by the petitioners praying to quash the order passed by the Land Tribunal, Haveri, on 27.4.1982 granting occupancy rights in favour of R-1.
2. I have heard the Counsel for the petitioners, Counsel for R-1 to R-3 and the Government Pleader for R-4 and R-5.
3. R-1 Mulla Sab Mardan Sab filed Form No.7 claiming, occupancy rights in Sy.No.5 measuring 3 acres 7 guntas and Sy.No. 51 measuring 11 acres 5 guntas situated at Yettinahalli village in Haveri Taluk. His Form No.7 came to be rejected by the Tribunal on 3.9.1977. R-1 preferred Writ Petition No. 1058/1978 and that Writ Petition came to be allowed and the matter was remitted to the Land Tribunal, Haveri, for fresh disposal in accordance with law, After remand, the Tribunal recorded the statement of Mulla Sab Mardan Sab, statement of petitioner-1 and passed orders granting occupancy rights in these lands to Mulla Sab Mardan Sab. The petitioners challenged this order before this Court in Writ Petition No. 24437/82. Subsequent to the coming into force of the Amendment Act, the Writ Petition came to be transferred to the Land Reforms Appellate Authority, Haveri, and when the matter was pending on the file of the Appellate Authority, it came to be abolished and thereafter the matter came as a Civil Petition before this Court and that Civil Petition has been converted into this Writ Petition.
4. It is an admitted fact in this case that the name of Mulla Sab Mardan Sab does not appear in the record of rights for these lands as tenant at any time. Mulla Sab Mardan Sab relied on a 'Kararu Pathra' alleged to have been executed in his favour on 4.4.1973. It is not a registered document. The Tribunal, after remand, recorded the statement of Mulla Sab Mardan Sab on 27.4.82, the statement of petitioner-1 on 27.4.1982 and orders also came to be passed on 27.4.1982. Because the orders have been passed on the very day when the statements of these persons came to be recorded, the Counsel for the petitioners argued that there was no application of mind by the Tribunal to the evidence led in this case. Merely because the authority, Court or the Tribunal disposes of the case diligently on the very day when the evidence was recorded, it cannot lead to the inference that there was no application of mind by the Tribunal to the evidence on record. Therefore, the argument of the Counsel for the petitioners that there was no application of mind cannot be accepted.
5. The Tribunal has relied on the statements of petitioner-1 and Mulla Sab Mardan Sab. Rule 17(5) of the Karnataka Land Reforms Rules lays down that the opposite party shall be allowed to cross-examine the witness and if it does not wish to so cross-examine, a note shall be made accordingly. A brief summary of the evidence given by each witness shall be recorded by the Chairman. A perusal of the statements recorded by the Tribunal does not disclose that the opposite party was allowed to cross-examine the witness or that even in spite of an opportunity being offered to the opposite party, it has refused to cross-examine the witness. If the opposite party refused to cross-examine the witness, the Tribunal ought to have noted that there was no cross-examination of the witness by the opposite party. But, the manner in which the evidence is recorded by the Tribunal does not indicate either whether the witnesses were offered for cross-examination or in spite of offering of the witnesses for cross-examination, the opposite party has refused to exercise its right to cross-examine the witnesses.
6. In the case of BELLIAPPA v. MUTHANNA, I.LR. 1980(1) Karnataka 195 this Court has held that when Tribunal records evidence of parties or witnesses or takes on record documents of a party, it must give a proper opportunity to the contesting parties to cross-examine such witnesses and adduce rebuttal evidence, if any. It is a fundamental principle of law that the evidence of a particular person or a witness must be tested by cross-examination before it is acted upon and the party against whom such evidence is recorded must have an opportunity to cross-examine such witness. Even the Counsel for R-1 could not deny the fact that there was no material in the evidence recorded by the Tribunal to lead to the inference that either these witnesses were offered for cross-examination or that in spite of offer being made for cross-examination, the party concerned has refused to cross-examine the witnesses. The Counsel for R-1 submitted that non-compliance of the Tribunal with Rule 17(5) of the Karnataka Land Reforms Rules is not such a discrepancy so as to affect the merits of the case resulting in miscarriage of justice. He relied on a decision in the case of PANCHAPPA v. STATE OF KARNATAKA, I.L.R 1989 Karnataka 974 wherein it has been held that any minor discrepancy in the order which does not affect the merits and does not result in miscarriage of justice is to be overlooked. Right to cross-examine the witness is a fundamental right of a party against whom the witness has deposed. If a party is not given an opportunity to cross-examine the witness, then it cannot be said to be a minor discrepancy which does not go to the root of the matter. In such a context, the Court cannot brush it aside as a minor contradiction or minor discrepancy and confirm the order of the Tribunal based on such evidence.
7. The next argument of the Counsel for R-1 is that this ground is not taken by the petitioners in the Writ Petition and, therefore, they cannot be permitted to raise it now. For this argument, he relied on a decision in the case of MARY M.D'SOUZA v. MUNICIPAL COMMISSIONER, MANGALORE CITY MUNICIPALITY, 1968(1) Kar.L.J. 90, wherein this Court has held that a plea which has not been raised in the affidavit in support of the Writ Petition cannot be permitted to be raised at the hearing without the leave of the Court. In this case, the petitioners have taken up ground No. 2 in which they have stated that the enquiry conducted by the Tribunal is not according to law as the statements of the parties were not recorded according to the rules. A very specific ground has been taken by the petitioners that the statements of the parties have not been recorded according to the rules. Therefore, the argument of the Counsel for R-1 that no such ground has been taken is totally misconceived as he has advanced this argument without going carefully through the grounds urged by the petitioners in the Writ Petition.
8. It is an admitted fact that the name of Mulla Sab Mardan Sab does not appear in the record of rights at any time as a tenant. R-1 was placing reliance on a 'Kararu Pathra1 which was unregistered. Even that Kararu Pathra is not properly proved in the evidence of Mulla Sab Mardan Sab. If we peruse the evidence of Mulla Sab Mardan Sab, there is no such material to lead to the inference that the Kararu Pathra relied upon by him has been proved by him in accordance with law. Therefore, the very basis of the order of the Tribunal, viz., the statements of the parties is defective inasmuch as they were not properly recorded. The Kararu Pathra is not proved and even there is no mention that the witnesses were offered for cross-examination to the opposite party. In view of these irregularities on the part of the Tribunal in not recording the statements of the witnesses properly which cannot be brushed aside as a minor discrepancy, the order of the Tribunal does not deserve to be sustained in law and it is required to be quashed.
9. Hence, I proceed to pass the following order : The Writ Petition is allowed and the impugned order is quashed and the case is remitted to the Land Tribunal with a direction to record the statements of the parties and then the witnesses in accordance with law and following the rules correctly regarding the enquiry to be held and thereafter dispose of the Form No. 7 filed by Mulla Sab Mardan Sab in accordance with law.