A. Susheela W/O Late Narayana Kalluraya Vs. the 1st Land Tribunal by Its Secretary and ors. - Court Judgment

Excerpt:
- sections 8 & 23 (as amended by act 39/2005): [chidananda ullal & h.n. nagamohan das, jj] succession, opened earlier to the amended act 39/2005 applicability of amended provisions to such cases held, the provisions of the amended act 39/2005 is not applicable to cases where succession had opened earlier to amended act 39/2005 coming into force. on facts held, the succession having opened in the year 1969, evidently, the provisions of amendment act, 2005 would have no application to the facts of the case. further, it is not in dispute that k died in the year 1969. on the demise of k in 1969, the succession is opened. as per the hindu succession act in force in 1969 a coparcener is entitled for coparcenary property. in the year 1969 k and his son deceased defendant no.4- d are the.....orderk. ramanna, j.1. this is a writ petition filed by the petitioners challenging the order dated 23.6.1981 passed by the 1st respondent i.e., land tribunal granting occupancy right in favour of respondent no. 3 in respect of the land in sy.nos. 116/2 measuring 23 cents, 116/1b-1c 10 cents and 100/2 measuring 28 cents of kemminje village of puttur taluk, d.k. on the ground that the impugned order is not a considered order and also not a speaking order. even though deceased respondent no. 3 has filed form no. 7 but not included the aforesaid three items of the land, the tribunal conferred occupancy right in his favour even though respondent no. 3 never stated before the tribunal that he is also in possession and enjoyment of the said land as a lawful tenant in respect of 3 items of the.....

Judgment:
ORDER

K. Ramanna, J.

1. This is a writ petition filed by the petitioners challenging the order dated 23.6.1981 passed by the 1st respondent i.e., Land Tribunal granting occupancy right in favour of respondent No. 3 in respect of the land in Sy.Nos. 116/2 measuring 23 cents, 116/1B-1C 10 cents and 100/2 measuring 28 cents of Kemminje village of Puttur Taluk, D.K. on the ground that the impugned order is not a considered order and also not a speaking order. Even though deceased respondent No. 3 has filed form No. 7 but not included the aforesaid three items of the land, the Tribunal conferred occupancy right in his favour even though respondent No. 3 never stated before the Tribunal that he is also in possession and enjoyment of the said land as a lawful tenant in respect of 3 items of the land immediately prior to 1.3.1974. But the petitioner contended that the Tribunal has not assigned any reasons in the impugned order under challenge at Annexure 'A' and failed to apply its judicious mind while confirming the occupancy right. Therefore, the impugned, order under challenge is liable to be quashed since it is illegal, incorrect and unsustainable. But the delay in filing this writ petition has been explained properly and there is violation of principles of natural justice. Hence, this writ petition.

2. Heard the arguments of the learned Counsel for the petitioner, learned Counsel for the L.Rs of deceased respondent No. 3 and the learned H.C.G.P. appearing for respondent Nos. 1 and 2.

3. During the course of arguments, learned Counsel for the petitioner contended that the deceased respondent No. 3 who is stated to be the tenant filed form No. 7 in respect of the other items of the land but not these three items to confirm occupancy right. But the Tribunal has no jurisdiction to confer occupancy right other than the items of the land claimed by such applicant in form No. 7. Therefore, the impugned order under challenge is not a speaking order and it is clear violation of mandatory provisions of the Karnataka Land Reforms Rules. Further, it is contended that merely because at the time of survey it was revealed that the deceased respondent No. 3 was also cultivating the aforesaid three items, therefore on the basis of the spot inspection and on the basis of the survey report, occupancy right granted by the Tribunal without any claim made by respondent No. 3 is illegal and violative of principles of natural justice. Further, it is contended that no claim has been made by respondent No. 3 for grant of occupancy right in respect of these three items of the land and it is not a speaking order and therefore, the matter may be remitted back to the Tribunal with a direction to rehear the arguments and dispose of the case in accordance with law.

4. In support of his contention, the learned Counsel for the petitioner relied on the decision reported in;

(i) In case of Pakeera Moolya v. Hari Bhat reported in ILR 1994 KAR 809 wherein, it has been held by Division Bench of this Court that:Amendment of Form No. 7: Claim in respect of each land separate claim impermissible to amend to include new item of land after expiry of period of limitation-Amendment possible, if land in respect of which claim made, description discrepant-Consent of party cannot confer jurisdiction.

He also relied upon another unreported decision in W.P.25672/96 in the case of A. Susheela v. The 1st Land Tribunal, Puttur and Ors. Wherein, it has been held that:

if the non-mentioning of the particular survey number in Form No. 7 filed by the applicant, even then if the Land Tribunal confirm the occupancy right, such order of the Tribunal is clearly erroneous as far as that survey number is concerned.

He has also relied upon other decision reported in : [1955]1SCR117 in case of Kiran Singh and Ors. v. Chaman Paswan and Ors. wherein it has been held that:

It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the vary authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.

5. On the other hand, learned Counsel appearing for the L.Rs of respondent No. 3 contended that the deceased respondent No. 3 was a tenant under the petitioner in respect of the several items of the land. Ofcourse, the deceased respondent No. 3 has not included these three items of the land in form No. 7 claiming occupancy right. But the R.O.R. discloses that respondent No. 3 was in possession and enjoyment of the said 3 items of the lands also as chalgenidar under the petitioners and right from 1968 onwards by the deceased respondent No. 3 and the present L.Rs of R-3 are in possession of the land. The survey report discloses that L.Rs of R-3 are in possession and the mode of cultivation shown in Col.12(3) is '5' and therefore, the Tribunal has rightly considered the entries found in the R.O.R. confirm the occupancy right. Further, it is contended that in the chalgeni receipt it is clear that the deceased respondent No. 3 was also paying necessary rent in respect of Bayalugana Beejavari (which is a seed area), which means that the deceased Respondent No. 3 was also cultivating the three items of the land. Therefore, merely because he has not shown three items of the land in form No. 7 it does not mean that he was not at all cultivating the land. The Tribunal has recorded the statement of the deceased applicant/respondent No. 3 wherein it is clearly stated that she was is possession of 3 items of land i.e., 3 mudibayalu, 1 1/2 Bayalugadde, residential house and 4 acres of dry land and she is also paying 17 mudi of rice, 110 coconuts as annual payment. Since petitioners have not denied about the execution of the chalgeni receipt in favour of the husband of deceased respondent No. 3, therefore, the Tribunal has rightly conferred occupancy right in her favour. Further it is contended by the L.Rs of the deceased R-3 that the petitioner has not explained the delay of 16 years caused in filing the writ petition. Therefore, he is not entitled to equitable relief to quash the impugned order.

6. In support of his contention, learned Counsel for the L.Rs of respondent No. 3 relied upon a decision of this Court in (a) reported in : ILR2005KAR2111 in case of Y.S. Ramachandra Rao v. State of Karnataka and Ors. Wherein, it has been held that 'whether the land Tribunal has jurisdiction to grant occupancy right in respect of a survey number not mentioned in form No. 7, by mistake of an applicant and mentioning a different survey number'-Even if there is a mistake of an applicant in mentioning a different survey number in form No. 7, it is permissible for the Land Tribunal to verify and ascertain the correctness of the numbers and pass appropriate orders.' (b) In case of Panduranga Adikari. v. The Land Tribunal, Karkala and 2 Ors. in W.P.20080/91 D.D. 15.7.1993 the Division Bench of this Court held that though the claimant may mention wrong number in his or her Form No. 7, the Tribunal has got jurisdiction to verify and ascertain the correctness of the numbers because the possibility of mentioning wrong numbers cannot be ruled out since Form No. 7 will be filled by the villager who are illiterate and ignorants. Therefore the Tribunal due enquiry find out the correct Sy.No. and grant occupancy right in respect of the Survey Number even though the claimant might have mentioned survey number wrongly. (c) He has also relied on a decision reported in 2000 AIR SCW PAGE 197 wherein the Hon'ble Apex Court held that

He has also relied upon another unreported decision in W.P.No. 20080/91 disposed of on 15.7.1993 in case of Padmaraja Adhirari v. The Land Tribunal, Karkala and Ors. wherein the Division Bench of this Court has been held that 'Though the claimant may mention wrong numbers in his or her form No. 7, the Tribunal has got jurisdiction to verify and ascertain the correctness of the numbers because the possibility of mentioning wrong numbers cannot be ruled out since Form No. 7 will be filed by the villagers who are illiterates and ignorants. Therefore, the Tribunal after due enquiry find out the correct survey numbers and grants occupancy rights in respect of that survey number even though the claimant might have mentioned some survey number wrongly.'

He has also relied upon another decision reported in 2000 AIR SCW 197 in case of Municipal Council, Ahmednagar and Anr. v. Shah Hyder Beig and Ors. wherein it has been held that 'It is now a well settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period, the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general taut it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law Courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, 'delay defects equity' has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-bye to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise.'

7. Therefore, the delay in filing the writ petition has not been properly explained and knowing fully well that the occupancy right has been granted in favour of deceased respondent No. 3, this petition filed after lapse of 15 years is not at all maintainable, which is liable to be dismissed.

8. On the other hand, learned H.C.G.P. appearing for respondents 1 and 2 contended that the Tribunal is right in granting occupancy right even though three items of the land has not been mentioned in form No. 7 while filing the application but the records indicate that the husband of deceased petitioner was in possession and enjoyment of the several items of the land among other items of the land. Further it is contended that the petitioner has not included the three items of the land in form No. 7 even though he was lawfully cultivating the land. Hence, the petition is liable to be dismissed. She further submitted that no explanation is offered for the enormous delay caused in filing the petition.

9. Having heard the arguments of both parties, now I proceed to see whether the order passed by the Land Tribunal granting occupancy in favour of deceased respondent No. 3 in respect of three items of the land Sy.Nos., namely, Sy.NO. 116/2(23 Cents), Sy.No. 116/1B1C (10 Cents) and 100/2 (28 Cents) even though those items have not been included in the Form No. 7 filed by her husband late Mr. Bastyam Rebello could be sustained in law. It is an undisputed fact that husband of deceased respondent No. 3 was a tenant under the petitioner herein and he had filed Form No. 7 claiming occupancy rights in respect of Sy.Nos. 115/1, 115/2, 103/3 and 103/4. After filing of Form No. 7, the first respondent got verified Form No. 7 on the basis of documents maintained in the office of the Tahsildar and found that the husband of the deceased respondent No. 3 was also cultivating the three items of the land in question. The records discloses that immediately after filing Form No. 7, the Tribunal got verified the documents and also directed the Surveyor to measure the land which was in possession of the husband of the deceased 3rd respondent but the said survey was conducted on 4.10.1979 and the surveyor has also prepared the sketch and the report and submitted the same which discloses that the husband of deceased respondent No. 3 had claimed occupancy rights in respect of 18 items of the land, measuring 2 Acres 24 Guntas. Thereafter, secured the presence of both parties, and after recording their statements and after making a spot inspection, the Tribunal granted occupancy rights in respect of said 18 items of the land i.e. the lands in dispute also. It is an undisputed fact that the husband of deceased respondent No. 3 was cultivating the said land as a 'chalagani dead' executed by the petitioner on 14.10.1998 in respect of certain items or the land namely Sy.Nos. 103 and 115 of Byramudi and he had also constructed a house in the said land. Byramudi land is used for raising seedlings. In order to raise paddy, usually farmers will sow some paddy to raise seedlings much earlier to plantation, after 45 days, they will remove the seedlings to sow them in the land. But the Tribunal after recording the statement of the petitioner as well as the husband of deceased respondent No. 3 has come to the conclusion that the husband of the deceased respondent No. 3 and her children who were in possession and enjoyment of the three items of the land also as lawful tenants and they were paying necessary rent to its owner. Of course, during the pendency of the enquiry, the deceased respondent No. 3 has not filed any application seeking amendment of Form No. 7 for inclusion of these three items of lands for grant of occupancy rights. Therefore, the contention of the learned Counsel that the very petitioner who had challenged the order of grant of occupancy rights in favour of deceased respondent No. 3 in Writ Petition No. 25672/1996 which was allowed by an order dated 26.8.1998, the L.Rs. of respondent No. 3 had filed civil petition before this Court on the ground that without impleading them as legal representatives of deceased respondent No. 3, the matter came to be dismissed. Therefore the civil petition came to be allowed and the earlier order dated 26.8.1998 was recalled. Therefore they have come up with this petition.

10. Of course, the Record of Rights in respect of the three items of and land discloses that right from the year 1968-69 the name of the husband of deceased respondent No. 3 finds a place in column No. 12(2), mode of cultivation is shown as '5' which clearly indicates that the deceased respondent No. 3 and her late husband were cultivating three items of the lands also as tenants. Of course, the chalageni receipt does not specifically indicate the survey numbers but the deceased respondent No. 3 had specifically stated before the Tribunal that he is in possession of the following lands namely:

was in her possession and enjoyment and she had paid 17 mudi of rice, 110 coconuts as rent to the landlords. The thumb impression of deceased respondent No. 3 was taken on her statement and she was cross-examined by the petitioner. The only suggestion put to her was that in the year 1961 chalageni receipt was executed in which respondent No. 3 showed her inability and no suggestions were put to respondent No. 3 by the petitioner that she was not at all cultivating the three items of the land also as a lawful tenant. The Tribunal also recorded the statement of the petitioner who is an educated lady and whose signature has been taken in her statement. According to her statement, deceased respondent No. 3 cultivated land Sy.Nos. 115/1, 103/3 and 103/4. Therefore, considering the entries found in column No. 12(2) right from 1968-69 onwards and the mode of cultivation shown as '5' even though in Form No. 7 the three items of lands in question are not shown as tenanted lands seeking occupancy rights, the Tribunal considered the report of the surveyor and the spot inspection made by it and has rightly conferred occupancy rights and subsequently the Tribunal has issued Form No. 10 in favour of deceased respondent No. 3. Now, the contention of the petitioner is that she was not aware of conferring occupancy rights in respect of the three items of the land therefore she recently came to know about the grant of occupancy rights in respect of disputed lands in question before filing the writ petition does not hold water. When there is delay in filing the writ petition and the delay is not intentional, if it is only bona fide, then the question of extraordinary jurisdiction under Article 226 could be used. To this submissions made by the learned Counsel for L.Rs. of deceased respondent No. 3 that the petitioner is also cultivating the adjoining lands as a owner and she denies that deceased respondent No. 3 was cultivating all eight items of the land including three items which were also granted in favour of their mother. Since the delay has not been explained, the equitable relief sought for by the petitioner cannot be granted under Article 226 of the Constitution of India unless the delay explained satisfactory. Delay plays an important role in considering the writ petition. The Division Bench of the Hon'ble Apex Court in the case of Municipal Council, Ahmednagar and Anr. v. Shah Hyder Beig and Ors. reported in 2000 A.I.R. SCW 197 wherein it has been held that:

Of course, extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law Courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, 'delay defects equity' has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-bye to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law.

11. Therefore, the petitioner herein who is an educated landlady is having an adjoining land to the disputed lands and other tenanted lands and she was cultivating the same and the legal representatives of the deceased respondent No. 3 were cultivating the land even after grant also but without challenging the order at Annexure-A passed on 23.6.1981. She has filed this writ petition which shows she had questioned the legal representatives of the deceased respondent No. 3 as to why they are cultivating the disputed three items of land and she ought to have filed a suit seeking relief of permanent injunction if they are not cultivating the lands. In paragraph 4 of the writ petition it is averred that the petitioner was all along thinking that the occupancy right was granted only over the portion of lands claimed in Form No. 7 and as admitted by petitioner and she did not realise that the unclaimed S.No. 116/2, 115/1B1C and 100/2 were also included in the order Annexure-A and she came to know about this fact in the second week at August 1996 when the deceased 3rd respondent tried to trespass into the said lands asserting that Tribunal had passed the order in respect of said survey numbers also. When the petitioner is residing in one and the same village and when she is cultivating the other items of the lands which are adjacent to three items of the land and other lands which are in possession of the legal representatives of the deceased respondent No. 3, the contention taken by the petitioner that she was only thinking that the occupancy right was granted only in respect of other items of lands but not these three items, cannot be accepted. Since the petitioner was not vigilant, interference under Articles 226 and 227 of the Constitution of India which are extraordinary powers vested with the Constitutional Court i.e. the High Court is not proper. The writ petition filed by the petitioner on this ground alone is liable to be dismissed. It is seen the Tribunal has elaborately discussed about the documentary evidence placed on record and the documentary evidence was secured from the jurisdictional Tahsildar and the Surveyor's report but in few sentences the Tribunal has summarised and the entire gist of the statements made by both parties and the documents produced and after considering the evidence placed and has rightly come to the conclusion that the deceased respondent No. 3 was also in possession and enjoyment of the said three items of the lands also as lawful tenant much earlier to the year 1974 i.e. from 1968-69 onwards. If the tenant happens to be an illiterate and a rustic villager who got filled Form No. 7 through some educated persons, the mistake may bound to appear and sometimes the person who filed the Form No. 7 may not mentioned the Survey Numbers of all the items of the land, it is the duty of the Tribunal to find out the lands which are in possession, enjoyment and cultivation of the applicants. In Form No. 7 claim made is for only 7 Acres and 19 Guntas of land and only four items of the land its Survey Numbers have been mentioned, whereas the report of the Tahsildar and the Surveyor as well as the spot inspection made by the Tribunal clearly discloses that the deceased respondent No. 3 was in possession of all the eight items of land measuring 2 Acres 24 Guntas which includes the three disputed lands in question. Therefore non-filing of an application seeking amendment by the deceased respondent No. 3 is not a ground to quash the order of grant of occupancy rights granted by respondent No. 1 in favour of deceased respondent No. 3. Therefore the writ petition filed by the petitioner after lapse of 16 years without giving proper explanation is liable to be dismissed. Hence, writ petition is dismissed as devoid of merits.

Smt. Asha Kumbargerimath, learned H.C.G.P. is permitted to file memo of appearance on behalf of respondent Nos. 1 and 2.