Rama Subraya Naik Since Dead by His L.Rs and ors. Vs. State of Karnataka Rep. by Secretary to Government and ors. - Court Judgment

Excerpt:
karnataka land reforms act, 1961 - section 21-grant of occupancy rights-whether the land tribunal can grant occupancy right to person who claims his right under the will-held-the land tribunal can grant occupancy right to a person who claims his right under the will-as per section 21(1) of the act, the permanent tenant can execute the will in favour of a 3rd party with whom he has interest for his welfare-the proviso to sub-section (1) of section 21 of karnataka land reforms act is not a bar to claim occupancy right or to grant occupancy right to a beneficiary of the will.;writ petition dismissed. - order 6, rule 17: [a.n.venugopala gowda, j] karnataka public premises (eviction of unauthorised occupants) act, (32 of 1974), sections 2(e)(5),16 - application for amendment of written statement on account of amendment of section 2 of act registered wakf falls within definition of public premises and thereby bars jurisdiction of civil court under section 16 of the act to entertain suits relating to eviction of public premises order of civil court for eviction of appellant and awarding damages challenged in appeal - since act was amended during pendency of appeal it is necessary to determine tenability of suit for eviction of public premises before, civil court . no new facts sought to be introduced in written statement. application for amendment of written statement should be allowed. order 41, rule 33: [a.n.vengopala gowda,j] karnataka public premises eviction of unauthorised occupants act (32 of 1974), section 2 powers of appellate court -amendment of section 2 of the act during pendency of appeal effect held, amendment by way of substitution, deemed to have been always part of said act has retrospective effect and should be considered by appellate court. h. abdul rasheed v madras-e-araba [r.s.a.no. 678/2003, dd 16.10.2008]. - the tribunal has failed to consider the oral and documentary evidence placed on record and it has simply narrated statement of the parties and not discussed the same. any assignment contrary to the said bar is invalid (of course, there is an exception in the case of a permanent tenant). this bar cannot be overcome by a tenant by creating a will. ..statute has peremptorily provided the succession which cannot be defeated by the tenant by bequeathing his interest. 3 are entitled to get the benefit of the will and as such it is contended that the impugned order is a well considered order and does not require any interference to upset the order. 5. learned hcgp for respondents 1 and 2 submits that the impugned order is a well considered order and as per the provisions of section 21(1) of the karnataka land reforms act, in case of permanent tenancy, the permanent tenant can execute the will in favour of the 3rd party with whom he has interest for his welfare. the petitioners have not disputed the relationship of r-3 with them as well as deceased rama subraya naik. 2-ishwara rama naik in his statement has clearly admitted that he has filed the appeal and he do not know the appeal number.orderk. ramanna, j.1. this writ petition is filed by the petitioners who are the legal representatives of rama subraya naik challenging the order dated 26-9-97 passed by the land tribunal-2nd respondent herein in case no. lrm. sr.5-666-459 produced at annexure-'d' whereby the land tribunal has granted occupancy right in favour of the 3rd respondent-keshava narayan naik in respect of the land bearing sy.no. 1626/2 to an extent of 14 guntas. therefore, the petitioners have come up with this writ petition mainly on the ground that, the tribunal has no jurisdiction to grant occupancy right in favour the 3rd respondent who claims right on the basis of the will said to have been executed by the father of the petitioners. the tribunal has failed to consider the oral and documentary evidence placed on record and it has simply narrated statement of the parties and not discussed the same. further, the tribunal has misread, misinterpreted and misunderstood the law laid down by the division bench of this court in the case reported in thimmakka kom venkanna naik v. land tribunal, ilr 1987 (4) kar 3336. the 3rd respondent who claims to be the tenant of the land in question has not proved the alleged will and that rama subraya naik has no authority to execute the will during his lifetime and as such he could not have bequeathed the property.2. heard the arguments of the learned advocates for the petitioners and respondent no. 3 and also learned hcgp for respondents 1 and 2. none represents on behalf of r-4, owner of the land.3. sri ravi g. sabhahit, learned counsel for the petitioners vehemently contended that the 3rd respondent is a third person and the land tribunal has conferred occupancy rights in his favour only on the basis of the will said to have been executed by rama subraya naik, who was the tenant under the 4th respondent and that the petitioners very much disputes about the alleged will said to have been executed by their father only with regard to sy.no. 1626/2 measuring 14 guntas of no. 3 haladipur village. it is further contended that though the chairman of the 2nd respondent was of the opinion that the claim of occupancy right on the basis of the will is hit by section 21(1) of the karnataka land reforms act, the majority members of the 2nd respondent-tribunal are of the view that the occupancy right has to be granted in favour of the 3rd respondent, which is incorrect and illegal and that the 3rd respondent cannot get any right of tenancy under the alleged will. further, it is contended that the. 3rd respondent has not examined the attestors of the will to prove its contents. the suit filed by r-3 seeking injunction was decreed by the munsiffs court. against which an appeal was preferred by the petitioners before the learned district judge, karwar and the said appeal is still pending. further, contended that the tribunal has not conducted the spot inspection and examined the neighbouring villagers of the said land and that the alleged will is not produced. therefore, it is contended that the impugned order under challenge is liable to be quashed. further, contended that petitioners 1 and 3 to 6 are unmarried daughters of late rama subraya naik and that the alleged will is executed by their father ignoring the rights of the petitioners and as per law, the petitioners are the legal heirs and are entitled to succeed to the estate of late rama subraya naik but not r-3. hence, the impugned order under challenge is not a speaking order and as such it is liable to be quashed. in support of his submission, reliance is placed upon the decision of this court reported in thimmakka kom venkanna naik v. land tribunal (supra) head note-3, which is extracted as hereunder:-'under section 21(1) there is a bar against sub-division or sub-letting of the land held by a tenant or assignment of any interest thereunder. any assignment contrary to the said bar is invalid (of course, there is an exception in the case of a permanent tenant). this bar cannot be overcome by a tenant by creating a will. what he cannot do during his lifetime cannot be held to be capable of being done immediately after his death. second proviso to section 21(1) highlights this aspect by conferring certain rights only on the surviving members of the family or on his heirs. if a tenant can will away his interest or a portion thereof, then the second proviso also will be nullified by enabling the legatee to have the land partitioned in his favour... statute has peremptorily provided the succession which cannot be defeated by the tenant by bequeathing his interest.4. per contra, learned counsel for the 3rd respondent contended that the 3rd respondent was assisting the original tenant namely the father of the petitioners and cultivating the land and managing his family affairs and that the deceased rama subraya naik, himself has filed form no. 7 and during the pendency of the said application he died. he had executed a registered will and the 2nd petitioner-ishwara rama naik being the only male issue of rama subraya naik has attested the said will and the 3rd respondent has rightly produced the said will before the land tribunal. the land tribunal after considering the fact that it is the permanent tenancy and that the will is executed by the deceased rama subraya naik in favour of r-3 due to affection has granted the occupancy right. further, contended that the recitals of the will discloses that in case, 3rd respondent pre-deceased the rama subraya naik, then the children of respondent no. 3 are entitled to get the benefit of the will and as such it is contended that the impugned order is a well considered order and does not require any interference to upset the order. further, the suit filed by the 3rd respondent was decreed, which was challenged in an appeal, and the said appeal also came to be dismissed. further, in view of the admission made by ishwara rama naik in the statement recorded by the tribunal, it is clear that the tribunal has rightly come to the conclusion that the 3rd respondent being the beneficiary of the will is entitled for grant of occupancy right in his favour. therefore, it is submitted that this writ petition is liable to be dismissed.5. learned hcgp for respondents 1 and 2 submits that the impugned order is a well considered order and as per the provisions of section 21(1) of the karnataka land reforms act, in case of permanent tenancy, the permanent tenant can execute the will in favour of the 3rd party with whom he has interest for his welfare. therefore, submits that the writ petition is liable to be dismissed6. having heard the arguments of the counsel for the respective parties, i have examined the impugned order to find out as to whether the impugned order under challenge passed by the land tribunal-2nd respondent is in violation of the principles of natural justice and whether there is any procedural lapse.7. it is seen that the 3rd respondent is none other than the nephew of the deceased rama subraya naik i.e. elder brother's son. petitioners 1 to 6 are none other than the son and daughters of deceased rama subraya naik. it is also an undisputed fact that 4th respondent is the owner of the land bearing sy.no. 1626/2 measuring 15 guntas in no. 3, haldipura village, honnavar taluk. late rama subraya naik, natural father of petitioners and junior paternal uncle of 3rd respondent was the permanent tenant in respect of the land in question. it is also an undisputed fact that, he filed form no. 7 while he was alive. during the pendency of the said form no. 7, he died on 6-1-1985 leaving behind his legal heirs namely petitioners 1 to 6 and the 3rd respondent. it is seriously disputed by the petitioners that if at all their father had executed any registered will in favour of the 3rd respondent, he ought to have produced the same before the land tribunal and proved its contents. in the instant case, the records of the land tribunal contains the registered will executed by deceased rama subraya naik and this fact has been referred to and discussed and considered by the tribunal in the impugned order under challenge. therefore, the contention of the petitioners that 3rd respondent has not produced the will before the tribunal cannot be accepted. it is also seen that during the course of enquiry, the tribunal has recorded the statement of the 2nd petitioner-ishwara rama naik and the 3rd respondent. the petitioners have not disputed the relationship of r-3 with them as well as deceased rama subraya naik. the very decision upon which the reliance is placed by the petitioners' counsel was also referred to before the land tribunal and the land tribunal has discussed the same and held that since it is the permanent tenancy, proviso to sub-section(1) of section 21 of karnataka land reforms act is not a bar to claim occupancy right or grant occupancy right to a beneficiary of the will. further, the contention that the appeal filled by the petitioner was till pending before the district judge at karwar is concerned, the very petitioner no. 2-ishwara rama naik in his statement has clearly admitted that he has filed the appeal and he do not know the appeal number. further, he has stated that he do not know whether his father had executed any will in favour of the 3rd respondent and admitted that the 3rd respondent has paid the wara to the owner of the land right from the death of their father and the 3rd respondent himself is getting the crops raised in that land. therefore, it cannot be said that the tribunal has not discussed and considered the evidence of the parties adduced before it. further, it is clear from the records, that the impugned order under challenge that the suit o.s.no. 42/88 ended in compromise on 10-3-88 and in that compromise petition, the petitioners being the l.rs. of the deceased rama subraya naik have accepted the same. the l.c.r.s contains the certified copy of the compromise decree dated 10-3-1988, which shows that the 3rd respondent is in enjoyment of the land in question even after the death of their father rama subraya naik. since the petitioners themselves have admitted that the 3rd respondent is in possession of the said land, the majority of the members of the land tribunal have rightly come to a conclusion and granted occupancy right in favour of the 3rd respondent, after considering both oral and documentary evidence placed by the parties and hence the same does not requires any interference to quash the same.8. the other contention urged by the petitioner is that the 3rd respondent has not proved the contents of the 'will' by examining the attestor. it is seen that one of the attestor to the will is ishwara rama naik the 2nd petitioner herein. he has denied the execution of the will in favour of the 3rd respondent. therefore, it is not proper to summon him to give evidence in favour of respondent no. 3. therefore, the tribunal is expected to follow the summary procedures in deciding the case of occupancy right. the will executed by the deceased rama subraya naik is a registered one. so far the petitioners have not challenged the same by filing the suit for declaration that the alleged will is not binding and it is null and void. in view of the compromise decree passed by the civil court holding that 3rd respondent is in possession and enjoyment of the land in question, the contention of the petitioners that the contents of the will has not been proved by examining the attestors of the will cannot be accepted. taking into consideration the facts and circumstances, the tribunal has rightly considered, discussed about the pros and cons of the evidence placed on record and also the ratio laid down in the decision referred to supra upon which reliance is placed by the petitioners' counsel, the land tribunal is right in granting occupancy rights in favour of the 3rd respondent. hence, the present writ petition is devoid of merits.9. accordingly, this writ petition is dismissed.

Judgment:
ORDER

K. Ramanna, J.

1. This writ petition is filed by the petitioners who are the legal representatives of Rama Subraya Naik challenging the order dated 26-9-97 passed by the Land Tribunal-2nd respondent herein in case No. LRM. SR.5-666-459 produced at Annexure-'D' whereby the Land Tribunal has granted occupancy right in favour of the 3rd respondent-Keshava Narayan Naik in respect of the land bearing Sy.No. 1626/2 to an extent of 14 guntas. Therefore, the petitioners have come up with this writ petition mainly on the ground that, the Tribunal has no jurisdiction to grant occupancy right in favour the 3rd respondent who claims right on the basis of the Will said to have been executed by the father of the petitioners. The Tribunal has failed to consider the oral and documentary evidence placed on record and it has simply narrated statement of the parties and not discussed the same. Further, the Tribunal has misread, misinterpreted and misunderstood the law laid down by the Division Bench of this Court in the case reported in Thimmakka Kom Venkanna Naik v. Land Tribunal, ILR 1987 (4) KAR 3336. The 3rd respondent who claims to be the tenant of the land in question has not proved the alleged Will and that Rama Subraya Naik has no authority to execute the Will during his lifetime and as such he could not have bequeathed the property.

2. Heard the arguments of the learned advocates for the petitioners and respondent No. 3 and also learned HCGP for Respondents 1 and 2. None represents on behalf of R-4, owner of the land.

3. Sri Ravi G. Sabhahit, Learned Counsel for the petitioners vehemently contended that the 3rd respondent is a third person and the land Tribunal has conferred occupancy rights in his favour only on the basis of the Will said to have been executed by Rama Subraya Naik, who was the tenant under the 4th respondent and that the petitioners very much disputes about the alleged Will said to have been executed by their father only with regard to Sy.No. 1626/2 measuring 14 guntas of No. 3 Haladipur village. It is further contended that though the Chairman of the 2nd respondent was of the opinion that the claim of occupancy right on the basis of the Will is hit by Section 21(1) of the Karnataka Land Reforms Act, the majority members of the 2nd respondent-Tribunal are of the view that the occupancy right has to be granted in favour of the 3rd respondent, which is incorrect and illegal and that the 3rd respondent cannot get any right of tenancy under the alleged Will. Further, it is contended that the. 3rd respondent has not examined the attestors of the Will to prove its contents. The suit filed by R-3 seeking injunction was decreed by the MunsifFs Court. Against which an appeal was preferred by the petitioners before the learned District Judge, Karwar and the said appeal is still pending. Further, contended that the Tribunal has not conducted the spot inspection and examined the neighbouring villagers of the said land and that the alleged Will is not produced. Therefore, it is contended that the impugned order under challenge is liable to be quashed. Further, contended that petitioners 1 and 3 to 6 are unmarried daughters of late Rama Subraya Naik and that the alleged Will is executed by their father ignoring the rights of the petitioners and as per law, the petitioners are the legal heirs and are entitled to succeed to the estate of late Rama Subraya Naik but not R-3. Hence, the impugned order under challenge is not a speaking order and as such it is liable to be quashed. In support of his submission, reliance is placed upon the decision of this Court reported in Thimmakka Kom Venkanna Naik v. Land Tribunal (Supra) Head Note-3, which is extracted as hereunder:-

'Under Section 21(1) there is a bar against sub-division or sub-letting of the land held by a tenant or assignment of any interest thereunder. Any assignment contrary to the said bar is invalid (Of course, there is an exception in the case of a permanent tenant). This bar cannot be overcome by a tenant by creating a Will. What he cannot do during his lifetime cannot be held to be capable of being done immediately after his death. Second proviso to Section 21(1) highlights this aspect by conferring certain rights only on the surviving members of the family or on his heirs. If a tenant can will away his interest or a portion thereof, then the second proviso also will be nullified by enabling the legatee to have the land partitioned in his favour... Statute has peremptorily provided the succession which cannot be defeated by the tenant by bequeathing his interest.

4. Per contra, learned Counsel for the 3rd respondent contended that the 3rd respondent was assisting the original tenant namely the father of the petitioners and cultivating the land and managing his family affairs and that the deceased Rama Subraya Naik, himself has filed Form No. 7 and during the pendency of the said application he died. He had executed a registered Will and the 2nd petitioner-Ishwara Rama Naik being the only male issue of Rama Subraya Naik has attested the said Will and the 3rd respondent has rightly produced the said Will before the Land Tribunal. The Land Tribunal after considering the fact that it is the permanent tenancy and that the Will is executed by the deceased Rama Subraya Naik in favour of R-3 due to affection has granted the occupancy right. Further, contended that the recitals of the Will discloses that in case, 3rd respondent pre-deceased the Rama Subraya Naik, then the Children of respondent No. 3 are entitled to get the benefit of the Will and as such it is contended that the impugned Order is a Well considered order and does not require any interference to upset the order. Further, the suit filed by the 3rd respondent was decreed, which was challenged in an appeal, and the said appeal also came to be dismissed. Further, in view of the admission made by Ishwara Rama Naik in the statement recorded by the Tribunal, it is clear that the Tribunal has rightly come to the conclusion that the 3rd respondent being the beneficiary of the Will is entitled for grant of occupancy right in his favour. Therefore, it is submitted that this writ petition is liable to be dismissed.

5. Learned HCGP for respondents 1 and 2 submits that the impugned order is a well considered order and as per the provisions of Section 21(1) of the Karnataka Land Reforms Act, in case of permanent tenancy, the permanent tenant can execute the Will in favour of the 3rd party with whom he has interest for his welfare. Therefore, submits that the writ petition is liable to be dismissed

6. Having heard the arguments of the counsel for the respective parties, I have examined the impugned order to find out as to whether the impugned order under challenge passed by the Land Tribunal-2nd respondent is in violation of the principles of natural justice and whether there is any procedural lapse.

7. It is seen that the 3rd respondent is none other than the nephew of the deceased Rama Subraya Naik i.e. elder brother's son. Petitioners 1 to 6 are none other than the son and daughters of deceased Rama Subraya Naik. It is also an undisputed fact that 4th respondent is the owner of the land bearing Sy.No. 1626/2 measuring 15 guntas in No. 3, Haldipura Village, Honnavar Taluk. Late Rama Subraya Naik, natural father of petitioners and junior paternal uncle of 3rd respondent was the permanent tenant in respect of the land in question. It is also an undisputed fact that, he filed Form No. 7 while he was alive. During the pendency of the said Form No. 7, he died on 6-1-1985 leaving behind his legal heirs namely petitioners 1 to 6 and the 3rd respondent. It is seriously disputed by the petitioners that if at all their father had executed any registered will in favour of the 3rd respondent, he ought to have produced the same before the Land Tribunal and proved its contents. In the instant case, the records of the Land Tribunal contains the registered Will executed by deceased Rama Subraya Naik and this fact has been referred to and discussed and considered by the Tribunal in the impugned order under Challenge. Therefore, the contention of the petitioners that 3rd respondent has not produced the Will before the Tribunal cannot be accepted. It is also seen that during the course of enquiry, the Tribunal has recorded the statement of the 2nd petitioner-Ishwara Rama Naik and the 3rd respondent. The petitioners have not disputed the relationship of R-3 with them as well as deceased Rama Subraya Naik. The very decision upon which the reliance is placed by the petitioners' counsel was also referred to before the Land Tribunal and the Land Tribunal has discussed the same and held that since it is the permanent tenancy, proviso to Sub-section(1) of Section 21 of Karnataka Land Reforms Act is not a bar to claim occupancy right or grant occupancy right to a beneficiary of the Will. Further, the contention that the appeal filled by the petitioner was till pending before the District Judge at Karwar is concerned, the very petitioner No. 2-Ishwara Rama Naik in his statement has clearly admitted that he has filed the appeal and he do not know the appeal number. Further, he has stated that he do not know whether his father had executed any Will in favour of the 3rd respondent and admitted that the 3rd respondent has paid the wara to the owner of the land right from the death of their father and the 3rd respondent himself is getting the crops raised in that land. Therefore, it cannot be said that the Tribunal has not discussed and considered the evidence of the parties adduced before it. Further, it is clear from the records, that the impugned order under challenge that the suit O.S.No. 42/88 ended in compromise on 10-3-88 and in that compromise petition, the petitioners being the L.Rs. of the deceased Rama Subraya Naik have accepted the same. The L.C.R.S contains the certified copy of the compromise decree dated 10-3-1988, which shows that the 3rd respondent is in enjoyment of the land in question even after the death of their father Rama Subraya Naik. Since the petitioners themselves have admitted that the 3rd respondent is in possession of the said land, the majority of the Members of the Land Tribunal have rightly come to a conclusion and granted occupancy right in favour of the 3rd respondent, after considering both oral and documentary evidence placed by the parties and hence the same does not requires any interference to quash the same.

8. The other contention urged by the petitioner is that the 3rd respondent has not proved the contents of the 'Will' by examining the attestor. It is seen that one of the attestor to the Will is Ishwara Rama Naik the 2nd petitioner herein. He has denied the execution of the Will in favour of the 3rd respondent. Therefore, it is not proper to summon him to give evidence in favour of respondent No. 3. Therefore, the Tribunal is expected to follow the summary procedures in deciding the case of occupancy right. The Will executed by the deceased Rama Subraya Naik is a registered one. So far the petitioners have not challenged the same by filing the suit for declaration that the alleged Will is not binding and it is null and void. In view of the compromise decree passed by the Civil Court holding that 3rd respondent is in possession and enjoyment of the land in question, the contention of the petitioners that the contents of the Will has not been proved by examining the attestors of the Will cannot be accepted. Taking into consideration the facts and circumstances, the Tribunal has rightly considered, discussed about the pros and cons of the evidence placed on record and also the ratio laid down in the decision referred to supra upon which reliance is placed by the petitioners' counsel, the Land Tribunal is right in granting occupancy rights in favour of the 3rd respondent. Hence, the present writ petition is devoid of merits.

9. Accordingly, this writ petition is dismissed.