irappa Vs. State of Karnataka and Others - Court Judgment

Excerpt:
- code of civil procedure, 1908. section 96: [s.r. bannurmath & a.n. venugopala gowda, jj] regular first appeal court fee in appeal - suit for partition and separate possession - payment of court fee of rs.200/-on the plaint under section 35(2) dismissal of suit appealed against - payment of court fee of rs.200/- in the appeal office objection specific finding by the trial court as to ouster of the plaintiff from the suit schedule property whether plaintiff is liable to pay court fee under section 35(1) or under section 35(2) of the karnataka court fees & suits valuation act, 1958 held, merely because the trial court has held that plaintiff is not in possession and has been excluded from possession there will be no change in the court fee payable in the appeal filed by the plaintiff against the decree passed by the trial court . the court fee payable on appeal is the same as the court fee paid on the plaint in the court of first instance i.e., in terms of section 49 of the k.c.f. &s.v. act, 1958. office objection is unsustainable. -- karnataka court fees & suits valuation act, 1958.[k.a. no. 16/1958]. section 41: regular first appeal court fee in appeal - suit for partition and separate possession - payment of court fee of rs.200/-on the plaint under section 35(2) dismissal of suit appealed against - payment of court fee of rs.200/- in the appeal office objection specific finding by the trial court as to ouster of the plaintiff from the suit schedule property whether plaintiff is liable to pay court fee under section 35(1) or under section 35(2) of the karnataka court fees & suits valuation act, 1958 held, merely because the trial court has held that plaintiff is not in possession and has been excluded from possession there will be no change in the court fee payable in the appeal filed by the plaintiff against the decree passed by the trial court . the court fee payable on appeal is the same as the court fee paid on the plaint in the court of first instance i.e., in terms of section 49 of the k.c.f. &s.v. act, 1958. office objection is unsustainable. - 2. 1 have perused the impugned order and prima facie satisfied that the same is unsustainable in law.order1. in this writ petition the petitioner has challenged the impugned orders at annexure-e dated 23-6-1982 passed by the land tribunal rejecting the claim of the petitioner for grant of occupancy rights in an extent of 3 acres 12 guntas in sy. no. 25 of k. janipeth village, on various grounds.2. 1 have perused the impugned order and prima facie satisfied that the same is unsustainable in law. the tribunal rejected the application of the petitioner on the ground that the land belongs to government and as per section 107 of karnataka land reforms act, 1961 the provisions of the said act are not applicable to the government land. in the impugned order itself it is observed that the name of the tahsildar is shown as wahiwatdar. the wahiwatkedar is in respect of sri panchalinga temple and the land in question belongs to the said temple. the tribunal has wrongly construed that since the name of the tahsildar is entered in the r.t.g. the land belongs to government. annexure-c produced along with the writ petition is the pahani extract. in that in the kabjedar or possessors column sri panchalinga deity's wahiwatdar is shown as tahsildar and the name of the petitioner is shown in column no. 11 relating to other rights and encumbrances as protected tenant from the years 1966 to 1976-77. annexure-d is the order dated 30-9-1965 passed by the assistant commissioner, bailahongal sub-division, constituting panch committee for the aforesaid temple. in view of these documents and the entries in the revenue records, the rejection of petitioner's claim for occupancy right in respect of the land in question on the ground that the land belongs to government and that the provisions of the act are not applicable to it, is wholly misconceived and contrary to law and the documentary evidence. the reason assigned is wholly erroneous and hence the impugned order is liable to be rejected.3. accordingly, the writ petition is allowed and the impugned order of the land tribunal at annexure-e is quashed. the matter is remitted back to the land tribunal for fresh disposal in accordance with law after affording opportunity to all the concerned parties, within a period of six months from the date of receipt of a copy of this order. all the contentions of the parties are kept open.

Judgment:
ORDER

1. In this writ petition the petitioner has challenged the impugned orders at Annexure-E dated 23-6-1982 passed by the Land Tribunal rejecting the claim of the petitioner for grant of occupancy rights in an extent of 3 acres 12 guntas in Sy. No. 25 of K. Janipeth Village, on various grounds.

2. 1 have perused the impugned order and prima facie satisfied that the same is unsustainable in law. The Tribunal rejected the application of the petitioner on the ground that the land belongs to Government and as per Section 107 of Karnataka Land Reforms Act, 1961 the provisions of the said Act are not applicable to the Government land. In the impugned order itself it is observed that the name of the Tahsildar is shown as Wahiwatdar. The Wahiwatkedar is in respect of Sri Panchalinga Temple and the land in question belongs to the said temple. The Tribunal has wrongly construed that since the name of the Tahsildar is entered in the R.T.G. the land belongs to Government. Annexure-C produced along with the writ petition is the pahani extract. In that in the kabjedar or possessors column Sri Panchalinga Deity's Wahiwatdar is shown as Tahsildar and the name of the petitioner is shown in Column No. 11 relating to other rights and encumbrances as protected tenant from the years 1966 to 1976-77. Annexure-D is the order dated 30-9-1965 passed by the Assistant Commissioner, Bailahongal Sub-Division, constituting Panch Committee for the aforesaid temple. In view of these documents and the entries in the revenue records, the rejection of petitioner's claim for occupancy right in respect of the land in question on the ground that the land belongs to Government and that the provisions of the Act are not applicable to it, is wholly misconceived and contrary to law and the documentary evidence. The reason assigned is wholly erroneous and hence the impugned order is liable to be rejected.

3. Accordingly, the writ petition is allowed and the impugned order of the Land Tribunal at Annexure-E is quashed. The matter is remitted back to the Land Tribunal for fresh disposal in accordance with law after affording opportunity to all the concerned parties, within a period of six months from the date of receipt of a copy of this order. All the contentions of the parties are kept open.