N. Kumar, J.
1. These four appeals arise out of a common order passed by the learned Single Judge quashing the order of the Tahsildar dated 28.8.2004 pasted in Inam Case No. 1/83-84/87-88 c/w. Case No. MAG 71/2002-03 and remanding the matter hack to the Tahsildar to consider the application in Form No. 5 afresh in accordance with law. Earlier by a common judgment this Court on 12.09.2007 allowed the writ anneals filed by the respondents herein holding that the proceedings initiated by the Tahsildar was without jurisdiction and therefore the order of remand is bad in law. The appeals filed by the appellants were dismissed. Against the said order, the appellants preferred Special Leave Petition to the Supreme Court in Civil Appeal Nos. 1040-1053 of 2009. Leave was granted, the appeal was heard on merits. The Apex Court held, neither Section 43 nor Section 10 of the Transfer of Property Act has any application to the facts of the case and the High Court was not justified in holding Section 43 as relevant. That portion of the High Court order was set aside and it hat reached finality. However, without expressing any opinion about the stand of either parties in regard to other matters, the judgment of this Court was set aside and the matter was remanded book to this Court for fresh consideration. It was made clear that the issue relating to applicability of Section 43 stands closed by virtue of the said judgment. That is how the matter is before us.
2. Basically, the question which arise for our consideration in these anneals is the application of Sections 41 and 130 of the Karnataka Land Reforms Act to the facts of this case. In other words, whether the application filed in Form No. 5 by the appellants for recovery of possession from the respondents is maintainable. If it is maintainable, whether the order passed by the Tahsildar is in accordance with law. Whether the learned Single Judge was right in setting aside the order and remanding the matter back to the Tahsildar for fresh consideration. In order to decide these two questions, It is necessary to set out in brief the facts leading to these proceedings.
The lands which are the subject matter of these proceedings are situate in Bettageri Village, Amathi Hobli, Virajpet Taluk, Kodagu District. The aforementioned lands were granted by the Rulers of Kodagu Virarajendra Wodeyar in about the year 1809 in favour of Kannada Mutt - a religious institution. These lands were granted as Jagir lands to the Mutt by Rulers. The Mutt was in possession and enjoyment of the lands since inception and also other lands appurtenant to the said lands. A portion of the jagir was mortgaged in favour of one Sri. C.P. Muthappa and Sri. B.B. Kalappa for a sum of Rs. 20.000/- under registered mortgage deed dated 1.3.1955 by the previous Mutadhipathi - late Sri. Channaveera Deshikondra Swamigalu. In terms of the mortgage deed they were in peaceful possession of these lands. Another deed of mortgage come into existence wherein two other lands were mortgaged in favour of C.P. Poonacha for a consideration of Rs. 20,000/-. The said Poonacha happens to be the brother of C.P. Muthappa. Under the mortgage deed the mortgagees were put in possession. The mortgage deeds stipulated a period of 99 years for redeeming the mortgage. It was a usufructuary mortgage for the loans taken by the then Matadhipathi who was the mortgagor. There was partition in the family of the mortgagees under a registered partition deed dated 8.1.1973. These properties have been distributed to those family members who are in occupation and possession of the property and enjoyment of the same.
3. The Karnataka Certain Inams Abolition Act 1977 was enacted in the State of Karnataka with the object of abolition of certain inams in and around the State of Karnataka including Kodagu District. (It is for short hereinafter referred to as loam Abolition Act). In terms of Section 4 of the said Inam Abolition Act, the inam tenure of all inama and minor inama to which the Inam Abolition Act applies, stand abolished and vested with the Government Under the Act, the holder of a minor inam is entitled to get occupancy rights of the lands from the Government. On 29.6.1987 Matadhipathi representing the Mutt filed an application for grant of occupancy rights in respect of the aforesaid lands under Section 5 of the Inam. Abolition Act. By order dated 11.12.1993 the Land Reforms Tribunal allowed the said application, hi fact, the respondents herein, the mortgagees in possession also had filed an application claiming occupancy rights on the ground that they are the tenants of the land in question. Their application was rejected. However, they contested the claim of the appellant and challenged the order dated 11.2.1993 passed by the Land Reforms Tribunal granting occupancy rights in favour of the appellant before this Court in W.P. No. 6379/1993. The learned Single Judge quashed the order granting occupancy rights in favour of the appellant. Aggrieved by the tame, the appellant filed an appeal before this Court in W.A. No. 3689/1997. The respondents also challenged the said order by filing W.A. No. 5816/1997. The appeal filed by the appellant was allowed, the order of the learned Single Judae setting aside the order of the Land Tribunal granting occupancy rights in favour of the appellant was set aside and the order of the Land Tribunal granting occupancy right in favour of the appellant was restored. The appeal filed by the respondents came to be dismissed. The said order has reached finality, since it was not challenged by the respondents. Subsequently, Form No. 2 - Certificate was issued to the appellant on 15.4.2000 who represented the Mutt. Even subsequent to that, there are several proceedings, writ petitions, orders, passed between the parties which are of no relevance in deciding the issues involved in these appeals, and therefore, they are not set out herein.
4. The appellant filed an application on 19.1.2004 in Form No. 5 under the Karnataka Land Reforms Act (far short hereinafter referred to as the Act) for possession of the land in question, by virtue of grant of occupancy rights. On that application, the Tahsildar of Virajpet passed an order of eviction on 28.08.2004, against the respondents. On the very same day he pawed one more order directing the Revenue Inspector to put the appellant in possession of the property. In pursuance of the said order, the Revenue Inspector handed over possession of the land in question to the appellant after dispossessing the respondents on 31.8.2004. It is that order dated 28.8.2004 which is challenged by the respondents before this Court in the writ petition. The said writ petition having been allowed these appeals are filed against the said order.
5. The learned senior Counsel Sri. Jayakumar S. Patil, appearing for the appellant assailed the impugned order, firstly on the ground that, having held that the malafides alleged against the Tahsildar and others is not proved, the learned tingle Judge could not have set aside the order of the Tahsildar solely on the ground that there is some suspicious circumstances. A perusal of the order sheet clearly shows the Tahsildar conducted an enquiry, heard both the parties and posted the cone for orders. As no date for pronouncement of the order was given, a notice was issued informing the parties that it may be pronounced on 28.8.2004, on which day he did pronounce the order. Merely because the words of the said notice did not mention about the pronouncement of the order but about the hearing of the case, the learned Single Judge was not justified in drawing inferences which he has drawn and therefore he submits, the said order setting aside the order of Tahsildar requires to be interfered with. Secondly, he contended, by virtue of Section 126 of the Karnataka Land Reforms Act, even in respect of inam lands and the order passed under the Inam Abolition Act, the provision of Karnataka Land Reforms Act are made applicable as far as may be and therefore Sections 41 and 130 of the Act is applicable for enforcement of the orders passed under the Inams Abolition Act. The word 'occupant' if it is properly construed means, a person entitled to possession of the property as a tenant under the Land Reforms Act and therefore Section 41 of the Act is attracted and the Tahsildar has the authority to hold enquiry and pass orders and therefore it cannot be said it is an order without jurisdiction. Even otherwise, Section 130 is attracted when admittedly the respondents ore unauthorized occupants of the land in question. They could be evicted by the Tahsildar by A summary enquiry under Section 130 of the Act. In support of his contention reliance wet placed on a judgment of the Division Bench of this Court in the case of Lakshminarayana Adiga v. Ramakrishna Adiqa : ILR 1993 KAR 2593 end submitted, in either event the Tahsildar has jurisdiction to pass an order of eviction and put the successful parties in possession. Therefore, he submits that the order passed by the learned Single Judge is liable to be set aside and writ petition be dismissed.
6. Per contra, Sri. A.K. Subbaiah, learned Counsel appearing for erstwhile mortgagees in possession contended that, the entire proceedings is one without jurisdiction, as neither Section 41 nor Section 130 of the Act has any application to the facts of this case. The impugned order passed is one without jurisdiction. The learned Single Judge was in error in holding that the application in Form No. 5 under Section 41 of the Act is maintainable and remanding the matter to the Tahsildar for fresh consideration. The records in the case clearly demonstrate, as for as back as in the year 2000 appellant claiming to be in possession of the property complained of tresspass to the executive magistrate against the respondents. Proceedings under Section 145 of Criminal Procedure Code, 1973 was initiated. To the knowledge of the respondents no proceedings under Section 41 of the Karnataka Land Reforms Act was initiated. No notice in the said proceedings were served on thorn. The proceedings under Section 41 of the Act is an insertion into the proceedings initiated under Section 145 of Code of Criminal Procedure i.e., a fraud was played by the appellant with the connivance of the Tahsildar. Secondly, he contended the order passed by Tahsildar is after his retirement. That is not the order which was dictated in the open court, transcribed and signed by him. The order shows it is an order which is typed on a computer. There was no computer facility is available in the Tahsildar office. It is a fabricated document. Therefore the said order is liable to be quashed not only on the ground of procedural irregularities even on the ground of fraud. Lastly, he contended, by virtue of the impugned order no possession was taken. An attempt was made to take possession of the land. Because of the resistance rendered by the respondents and an interim order granted by this Court, the appellants were not successful in getting possession of the land. However, they hove managed to take possession of 3 servant quarters illegally. Subsequently, the appellants have abandoned those 3 servant quarters as it la of no use to them and therefore it continued to be in their possession. Therefore he submits, the entire proceedings have to he quashed.
7. In the light of the aforesaid material on record and the rival contentions, the points that arise for consideration are:
1. Whether an inamdar who has been granted occupancy rights under the Inam Abolition Act can invoke Section 41 to recover possession from a person who is not a tenant of the land in question?
2. Whether the order passed by the Tahsildar is sustainable on merits?
Point No. 1
8. The facts are not in dispute. Under the Inam Abolition Act, the occupancy right was granted in favour of the appellant. The application of the respondents for grant of occupancy rights was rejected. Both the orders have reached finality. Prior to coming into force of the Inam Abolition Act, the status of the parties was that, the appellant was the inamdar who had mortgaged the property in favour of the respondents. Therefore the relationship between them is that of the mortgagor and mortgagee. There is no jural relationship of landlord and tenant as defined under the land Reforms Act exists between the parties. Though in the year 2000 proceedings under Section 145 of Criminal Procedure Code was initiated, the very fact that on 19.1.2004 on application in the prescribed Form No. 5 for possession of land was filed under Section 41 of the Act by the appellant shows that the appellant was not in possession of the land. In fact, in the said application it is categorically stated that the appellant is entitled to the possession of the properties and the opponents are in possession and the some may be handed over to the appellant at an early date. In this context it is necessary to know what is the right of the appellant. The land in question was an Inam Land and it became vested with the Government under the provisions of the Inam Abolition Act. Section 11 of the Inam Abolition Act deals with the procedure for registration of occupancy right. It provides, every person entitled to be registered as an occupant under the Inam Abolition Act shall make an application to the Tribunal constituted under the Act, on or before 31st day of March 1991. Such application shall be disposed of by the Tribunal as if it is an application made wider the Land Reforms Act. It if in pursuance of the said provision, appellant - the inamdar filed an application before the land Tribunal for grant of occupancy right and the said application was disposed of by the Tribunal as if it is an application made under the Act Section 126 of the Act, provides that all the rights and obligations conferred on tenants and landlords under the Act shall be applicable to tenants holding lands in inam and other alienated villages or lands including tenants referred to under Section 8 of the Village Officers' Abolition Act, 1961 but subject to the provisions of the said Act and to landlords and inamdars holding lands in such villages or lands. Therefore, the rights and obligations of the landlords, inamdars and tenants under the Inam Abolition Act shall be the same as that of landlords and tenants under the Act.
9. The answer to the question raised in this appeal revolves round the interpretation of Section 41 of the Act. Section 41 of the Act finds place in Chapter II which deals with general provisions regarding tenants. Section 4 defines who are the persons who are deemed tenants under the Act. Section 5 deals with prohibition of lease. Section 7 deals with restoration of possession of tenants dispossessed in certain circumstances. By amendment Act 1 of 1979, the said provisions is made applicable to tenants who had been ordered to be registered as occupants under Sub-section (5) of Section 46-A. Section 10 deals with rights and liabilities of landlord. Section 13 deals with resumption of land by soldier or seaman. Section 20 deals with consequences of failure to cultivate. Section 21 prohibits sub-division, subletting and assignment. Section 22 provides for eviction of tenant for default, etc., Section 24 has made the tenant's right heritable. Section 25 provides for surrender of land by tenant. Section 33 deals with Bar to evict from dwelling house. Section 36 and Section 37 deal with right of tenants to purchase dwelling house or site. Section 39 deals with first option to purchase land. In this background, Section 41 has to be appreciated and understood, which deals with procedure for taking possession.
10. Section 41 of the Karnataka Land Reforms Act reads as under:
41. Procedure for taking possessions - (1) A tenant or an agricultural labower entitled to possession of any land or dwelling house or site under any of the provisions of this Act or as a result of eviction in contravention of Sub-section (2) may apply in writing for such possession to the Tahsildar The application shall be made in such form as may be prescribed and within a period of two yearn from the date on which the rights to obtain possession of the land, dwelling house or site is deemed to have accrued to the tenant, agricultural labourer, as the case maybe.
(2) Save as otherwise provided in this Act, no landlord shall obtain possession of any land, dwelling houses or sits held by a tenant except under an order of the Tahsildar. For obtaining such order he shall make an application in the prescribed form and within a period of two years form the date on which the right to obtain possession of the land, dwelling house or site, as the case may be, is deemed to have accrued to him.
(3) On receipt of application under Sub-section (1) or (2) the Tahsildar shall, after holding an inquiry, pass such order, thereon as he deems fit.
(4) Any person taking possession of any land, dwelling house or sue except in accordance with the provisions of Sub-section (1) or (9), as the case may be, shall be liable to forfeiture of crops, if any, grown on the land in addition to payment of costs as may be directed by the Tahsildar and also to the penalty prescribed in Section 125.
(emphasis supplied)
11. Sub-section (1) of Section 41 enables a tenant, who ii entitled to possession under any of the provisions of the Act to recover possession of the land. If a tenant is dispossessed by the land lord in contravention of Sub-section (2) of Section 41 by the land, ha can invoke this provision to recover possession. Therefore, this provision is meant only to a tenant and not to the landlord. In so far as Sub-section (2) is concerned, a right is conferred on a land lord to recover possession, held by a tenant. The condition precedent is the land should be held by a tenant, not by any other person.
12. Therefore, the condition precedent for application of Section 41 of the Act is, there should be the existence of jural relationship of landlord and tenant or agricultural labourer and landlord between the parties. It provides for both tenant and landlord to make an application for taking possession. The right of tenant, agricultural labour, or land lord are watt defined in Chapter II of the Act, as set out above. It is to enforce such rights they can make an application in the prescribed form to the Tahsildar, within the time stipulated. It is on receipt of such an application under Sub-section (1) or (2), the Tahsildar shall, after holding enquiry, pass such order thereon as he deems fit. The right of a tenant for restoration of possession of land is contained in Section 7. The dispossession of land referred to therein is anterior to the appointed day. However, by an amendment Act 1 of 1979, the benefit of the Section is extended to tenants who are ordered to be registered as occupants under Sub-section (5) of Section 48A of the Act. Advisedly no such benefit is extended to the land lord under the Act, as subsequent to the appointed day there is no right in the land lord to seek restoration of possession from the tenants, as the tenanted lands vest with the Government from the appointed date. In this background, what is the effect of Section 185 of the Act requires to be noticed. Section 126 of the Acts reads as under:
126. Application of Act to imams:- For the removal of doubts ft is hereby declared that the provisions of Ms Act in so far as they confer any rights and impose obligations on tenants and landlords shall be applicable to tenants holding lands in inam and other alienated villages or lands (including tenants referred to in Section 8 of the Village Offices Abolition Act, 1961 but subject to the provisions of the said Act) and to landlords and inamdars holding in such mages or lands.
13. All that this provision provides for is, the rights and obligations which are conferred on landlords and tenants under the Act, are also conferred on the landlords, inamdara and tenants in respect of the inam lands. In other words, Chapter II of the Act which deals with the rights and obligation of landlords and tenants and they are made applicable to the landlords, inamdara and the tenants under the inamdara under the Inams Act, also.
14. Both the Land Reforms Act and the foams Abolition Act, do not deal with rights of a mortgagee in possession. In fact, the definition of a tenant does not include a mortgagee in possession. Section 4 of the Act which deals with deemed tenants expressly excludes from the definition of a deemed tenant, a mortgagee in possession. The Land Reforms Act does not provide for recovery of possession from a mortgagee in possession, as the land which is in possession of the mortgagee is not a tenanted land and therefore it does not vest with the Government on the appointed date and the Act itself is not applicable to the said lands. Therefore, both the Acts hove no application to too mortgagee in possession of the land la question.
15. The argument of the learned senior counsel for the appellant was that, once occupancy right is granted in favour of an inamdar ho would become a tenant under the Karnataka Land Reforms Act or at any rate he would be an occupant. Either he should he granted benefit at a tenant under Section 41 of the Act or otherwise as an occupant under Section 130 of the Act.
16. In fact, the word 'occupant' is not defined either in the Land Reforms Act or under the Inam Abolition Act, Therefore, Section 2(B) of the Act provides that words and expressions used in the Act, but not denned shall have the meaning assigned to them in the Karnataka Land Revenue Act and the Transfer of Property Act, 1882, as the case may be. It has to be read in the context of the opening words of Section 2(A), where it is made clear that the words used under the Act are to be given the meaning assigned to them in the definition clause, unless the context otherwise requires. Therefore, we have to go to the word 'occupant' as defined under the Land Revenue Act, which reads M under:
2(20) Occupant means the holder in occupation, possession of un-alienated land other than a tenant.
17. Though occupancy right was granted in favour of the appellant, ho was not in occupation or possession of the land either on the date of grant or earlier to the grant and therefore the word 'occupant' in the Karnataka Land Reforms Act does not apply to the occupancy right granted by the tribunal in favour of the appellants. When the occupancy rights are conferred in respect of an inam lands on an inamadar or a landlord, merely because Section 126 of the Act is made applicable to such landlords, it dose not mean occupant under the Inams Abolition Act in whose favour the occupancy rights are granted would become a tenant. Section 41 though enables the landlord to obtain possession of any land or dwelling house or site held by tenant by virtue of an order of Tahsildar, the said application can be made by a landlord only against the tenant. In other words, an inamdar who has been granted occupancy rights under the Inam Abolition Act if at all can make an application under Sub-section (2) of Section 41 of the Act against his tenant of the inam land. But such an application is not contemplated against a person other than a tenant. Therefore, Section 41 cannot be invoked by an Inamdar who is granted occupancy rights of an inam land under the Inams Abolition Act, against a mortgagee in possession of inam land prior to vetting of the land in the Government.
18. In so far as application of Section 130 of the Act is concerned, the said section reads as under:
130. Summary eviction - Any person unauthorizedly occupying or wrongfully in possession of any land-
(a) the transfer or acquisition of which either by the act of parties or by the operation of law, is invalid tinder the provisions of this Act; or
(b) to the use and occupation of which he is not entitled under the provisions of this Act and the said provisions do not provide for the manner of eviction of such person,
may be summarity evicted from such land by the Tahsildar, after such inquiry as he deems pt and the Tahsildar may make such orders as regards the disposal of such land as he deems fit.
19. The said provision can be invoked by the Tahsildar to evict any person unauthorizedly occupying or wrongfully in possession of any land, the transfer or acquisition of which either by the act of partial or by the operation of law, is invalid under the provisions of this Act or to the use and occupation of which ha in not entitled to under the provisions of this Act and the said provision will not provide for the manner of eviction of such person. That is an enabling provision to the Tahsildar to evict persons, who are in unauthorized occupation or wrongfully in possession or wore not entitled to put in possession of a government land and the Tahsildar has been vested with the power to summarily evict such person, take possession of the land as he deems fit. The said provision does not confer any right on the landlord or tenant to seek eviction. When a legislation has specifically provided Section 41 under the Act, Section 130 is not available to them. Both these Sections operate in different spheres.
20. In fact reliance is placed on a judgment of the Division Bench of this Court in the case of Lakshminarayana Adiqa v. Ramakrishna Adiga reported in : ILR 1993 Kar. 2593, wherein it was held:
provisions of Sections 41 and 130 of the Act are in the nature of execution proceedings giving effect to the decree or orders passed by the authorities in question. In addition to that, those provisions can be invoked where possession may be unlawful. 7b confirm the scope of Section 130 of the Act only to case when possession becomes unlawful in the circumstances specifically mentioned in the provisions of the Act will be reading down the scope of the provisions of the Act and unnecessarily cutting down the Jurisdiction of the authorities thus depriving the rights of the tenants or other persons entitled to possession under the valid orders made by the authorities under the Act nullified.
21. A careful reading of the aforesaid judgment shows that it was a case where after the tenant had applied for grant of occupancy right and the tenant was granted occupancy right by the Land Tribunal, in the interregnum period he has been dispossessed. In that context, he approached the Land Tribunal far recovery of possession. Section 41 of the Act was held not applicable because he had not been dispossessed contrary to Sub-section (2) of Section 41 of the Act and therefore he is not entitled to the relief under the said law. It is in that context it was held a tenant of an agricultural land in whose favour occupancy right has been granted by the Land Tribunal should not be deprived of possession by piecing such interpretations on these two provisions and therefore in the facts of the said case it was hold that the tenant is entitled to secure possession under the aforesaid provisions and those provisions hove been treated as in the nature of execution proceedings. In fact in the aforesaid judgment, the amendment to Section 7 of the Act, by Act 1 of 1979, was not noticed. The said provision was made applicable to tenants who had been ordered to be registered as occupants under Sub-section (5) of Section 48-A. Consequently Section 41 was applicable to them.
22. The said judgment has no application to the facts of this case as appellants are not the tenants of the land in question. They were inamdars of the land and under the Inam Abolition Act occupancy right has been granted to them. The Land Reforms Act is meant only for a tiller of the land or tenant and therefore those provisions cannot be so interpreted to secure possession to inamdar under the Iham Abolition Act. They had not made any application under Section 130 of the Act. The said provision is not attracted to the facts of the case. On the contrary proceedings were initiated under Section 41 of the Act, by filing a prescribed application in Form No. 5. In that view of the matter, we are of the view that the application filed by the appellants under Section 41 was not maintainable. The Tahsildar had no jurisdiction to entertain the application much lost pass the impugned order and therefore on this ground alone the impugned order is liable to be quashed, and consequently the order of the learned tingle Judge, remanding the case to the Tahsildar for fresh consideration is also unsustainable.
Point No. 2
23. Coming to the merits of the order, the learned Single Judge after carefully going through the records has accepted the case of the respondents and has expressed that a doubt is created in the mind of the court with regard to the pronouncement of the orders on 28.8.2004 and accordingly he set aside the said order. He has clearly set out in the order his observations and he has held that all is not well with the Tahsildar while passing the impugned order.
24. In order to satisfy ourselves we also summoned the original records. From the records, we notice as under:
The impugned order is passed in Case No. Land Retorms/Inam/1/83-84/87-88 C/w. Case No. MAG.71/2002-03. The case No. Inam/1/83-84 as the number suggests is a proceeding initiated in the year 1983-84 on an application filed by the appellants for grant of occupancy rights under the Inams Abolition Act The proceedings bearing No. 71/2002-03 is a proceeding initiated on a complaint lodged by the Sub-Inspector of Police, Siddapur Police Station, Siddapur against one M. Devappa Mane and Appanna verghese and Smt. Kaveri Punacha under Section 145 of Criminal Procedure Code. Notices to the parties are issued in these proceedings, hi fact, an interim order came to be passed appointing the receiver under Order XL Rule 1 of the Coda of Civil Procedure. The said order came to be challenged by the respondents herein in Crl. Revison Petition No. 754/2002. In the said proceedings not only the said order but the entire proceedings came to be quashed. In spite of the same, notices have been issued in the said proceedings and proceedings are continued. It is in these proceedings on 16.2.2000, an application filed by the appellants in Form No. 3 finds a place. It is the specific case of the respondents that, they appeared through an advocate, in the proceeding under Section 145 Criminal Procedure Code, and in the order sheet their counsel has put his signature, in the said case. No case number is given to the proceedings under Section 41 of the Act The application filed in the prescribed Form No 5 under Section 41 of the Act has not been served on the respondents. The respondents have not filed any counter. The respondents have not adduced any evidence in respect of the said proceedings. They have not been heard in the case. The impugned order it pasted behind their beck, in violation of principles of natural Justice. All the statement of witnesses which axe recorded is in respect of the proceedings under Section 145 of Criminal Procedure Code. That is why in the notice dated 28.8.2004 which is served on them it is clearly mentioned that they are called upon to appear at 11.00 a.m. on 28.8.2004 in respect of the dispute of Kannada Mutt, Betageri village, Hunsur. It is not a notice issued as contended by the counsel for the appellants informing the respondents about the pronouncement of the orders in a proceeding under Section 41 of the Act. The impugned order is said to have been passed on 28.8.2004. It is not in dispute the Sri. M.N. Subbarao - Tahsildar retired from service on 31st August 2004. the impugned order runs to 12 pages. The last line of the order states, the said order was dictated, typed and pronounced in the open court on 28.8.2004. It is not typed on a typewriter. It is an order which is typed on a computer. After coming to know of the said order, the respondents gave an application to the Tahsildar office under the provisions of Right to Information Act seeking for particulars, such at, who is the stenographer who took dictation of the Mid order, who has typed the order and whether computer was in the office. On 11.10.2006 an endorsement came to be issued stating that, in the Tahsildar office there is no stenographer at all. The typist who was working was one Ramesh. On 28.8.2004 there was no computer facility available in the Tahsildar Office. It is on that basis the counsel far the respondents submit that the entire impugned order is inserted by the Tahsildar after getting the same done outside and there was no pronouncement of such order in the open court as mentioned in the said order. In fact immediately after the said order he has passed one more order directing the Revenue Inspector to hand-over possession to the appellants. The said order bears again the Case No. Inam/1/83-84 and 87-88 and proceedings in MG.71/2002-03. It is a typewritten order. If really the computer facility was available, no explanation is forthcoming why this order directing revenue inspector to get possession is on typewriter. On the basis of the said order the records disclose the revenue inspector appears to have gone to the spot on 31.8.2004 and drew a mahazar in the presence of panchayatdars and delivered possession to the appellants.
25. In this background it is necessary to too the provisions of law which dealt with delivery of possession. Rule 12 of the Karnataka land Reforms Rules (for short, hereinafter referred to at the Rules) dealt with application for possession of any land or derailing house or site. An application, for possession of land or dwelling house or site under Sub-sections (1) or (2) of Section 41 shall be in Form No. 5. Rule 39 deals with the procedure to be followed by Revenue Officers for enquiries. Save as otherwise expressly provided in these rules, the Deputy Commissioner or other officers of the Revenue Department shall for the purpose of any enquiry or proceedings under the Act, follow the procedure specified for a formal enquiry under Section 33 of the Karnataka Land Revenue Act, 1964. Section 33 of the Karnataka Land Revenue Act deals with formal enquiry and Section 34 deals with summary enquiry. Section 39 deals with the manner of evicting any person wrongfully in possession of land. It provides, whenever it is provided under this Act or any other law for the time being in force, the Deputy Commissioner may or shall evict any person wrongfully in possession of land or where any order of delivery of possession of land has been passed against any person under this Act, such eviction shall be made or such ardor shall toe executed, as the case may be by serving a notice an the person or persons in possession requiring them within such time as may appear reasonable, after receipt of the said notice to vacate the land and if such notice is not obeyed, by removing or deputing a subordinate officer to remove any person who refuse to vacate the same. In the instant case, if it is to be construed that the order granting occupancy rights under the Inam Abolition Act entitled the appellant to possession of the land in question and it is in pursuance of the same they made an application under Section 41 of the Act in the prescribed Form No. 5, it is only after a formal enquiry Tahsildar could have passed an order. From what is stated above, no formal enquiry is conducted. After formal enquiry, after passing the order, if the respondents refused to vacate, then under Section 39 of the Karnataka Land Revenue Act before evicting the respondents an obligation is cast upon the Revenue Officer to serve a notice on the respondents fixing the time for bending over possession of the land from the date of receipt of the said notice. Only if after service of such notice the respondents were to disobey, then the Revenue Officer may remove the respondents from the possession of the land.
26. Admittedly, in the instant case no notice fixing the data far handing over possession of the land and the premises was ever issued much leas served cm the respondents. On the contrary, the moment en order is passed on 29.8.2004 one more order is passed directing the Revenue Officer to put the appellant in possession and the Revenue Officer appears to have proceeded to the spot and handed over possession of the land and premises to the appellant, conducted a mahazar, affixed his signature and then submitted the same to the Tahsildar who also affixed his signature. This procedure is unknown to law, contrary to the mandatory provisions and thus raise a doubt tm rightly held by the learned Single Judge about not only the validity of the order but also delivery of possession. Here, we have to remember, the Tahsildar retired on 31.8.2004. Proceedings which was lying dormant for months and years started moving just 3 days before his retirement. 28.08.2004 was the date of order and on the same day the direction was issued and on 31.8.2004 the possession is shown to have been delivered. There was no facility of a stenographer, there was no facility of a computer but still the impugned order is typed in 12 pages in beautiful Kannada as well as in English language. The tenor of the order shows that it is highly improbable that the Tahsildar could have passed an order which made the learned Single Judge to express doubts about the genuineness of the order and the said observation is justified as it is supported by the material on record.
27. Sri. A.K. Subbaiah, learned Counsel appearing for the respondents submitted that it is not a mere doubt, it is a clear case of fraud played by the appellant with the connivance of the Tahsildar and they have fabricated the document and they have tampered with the judicial proceedings and therefore action should be taken against them. Again any action to be taken against them should be after hearing. This Court should not embark upon an enquiry in these proceedings. Suffice it to say, the way the Tahsildar has conducted himself and has passed the impugned order and the way the possession is said to have been taken, clearly demonstrates a clear case of abuse of the process of law, fabrication of records as well as interpolation of the judicial proceedings. Therefore, even on merits, the impugned order cannot stand the judicial scrutiny and the learned Single Judge has rightly set aside the same.
28. In fact, the material on record discloses, it is the respondents who had raised crop in the land in question and by virtue of the orders pawed by the Apex Court when they found it difficult to out and remove the crops, they moved the Supreme Court for permission. The Supreme Court granted permission to out and remove the crop in the said land making it dour that, it should not be considered as a piece of evidence to show that they are in possesion. The order of the learned Single Judge also shows, that he ha proceeded on the assumption that the respondents have boon dispossessed and therefore, possession is to he restored to them. Subsequent conduct of the respondents also shows, they have made an application for restoration of possession of 3 servant quarters which according to them was forcibly taken by them but they contend they continue to be in possession of the land as such. The material on record, the events set out above clearly demonstrates, it is the respondents who are in possession, who are continuing in possession and records are created to show possession is taken from them. They are all sham documents. It is a case of paper delivery. We are satisfied from the material on record, notwithstanding the order for possession, direction to put the appellants in possession, and the mahazar drawn on 31.08.2004, possession continues with the respondents and the appellants were never put in possession. In that view of the matter, to sot at rest the controversies, we hold that the respondents never lost possession of the land and ore continuing in possession of the land, hi that view of the matter, the order of the learned Single Judge setting aside the order of the Tahsildar an merits do not call for interference.
29. The material on record shows, the appellants in collusion with the Tahsildar tried to manipulate the proceedings and abuse of process of low and mode these respondents to fight litigation at huge cost Therefore, they are liable to pay costs to the respondents.
30. Hence, we pass the following order:
(a) W.A. Nos. 1936/2005, 1941/2005 and 1946/2005 filed by the appellants am hereby dismissed.
(b) W.A. No. 2202/2005 filed by the respondents is allowed.
(c) Consequently, the application in Form No. 5 filed under Section 41 of the Karnataka Land Reform Act, 1961 by the appellants is hereby rejected as not maintainable.
(d) the appellants herein and the third respondent in W.A. No. 2202 of 2005 who was the Tahsildar, each shall pay a cost of Rs. 10,000/- to the respondents.