17 September 2004
Supreme Court
Download

RAM Vs STATE OF KARNATAKA .

Case number: C.A. No.-007431-007431 / 2000
Diary number: 16443 / 1999
Advocates: Vs V. D. KHANNA


1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (civil)  7431 of 2000

PETITIONER: Ram & Another

RESPONDENT: State of Karnataka & Ors.

DATE OF JUDGMENT: 17/09/2004

BENCH: V. P SHIVARAJ ATIL & B.N.SRIKRISHNA

JUDGMENT: J U D G M E N T

Shivaraj V. Patil J.

       One Dattoba Daji Saheba Desai filed Form No. 7 under  Section 48-A of the Karnataka Land Reforms Act, 1961 (for short  ‘the Act’) before the Land Tribunal (for short ‘the Tribunal),  Belgaum, claiming occupancy rights over the land Survey No. 43  measuring 2 acres 23 guntas exclusively to himself.  3 other  applicants namely,  Baburao Desai, Vishwasrao Desai and  Jayawantrao Desai also made similar applications for grant of  occupancy rights in respect of the same land claiming 1/4th share  each.  The Tribunal, after conducting enquiry, by order dated  20.8.1975 granted occupancy rights in favour of these 4 persons  as regards their respective shares.  Dattoba, aggrieved by the  said order, filed Writ Petition No. 5244/1975 before the High  Court challenging the correctness of the said order of the  Tribunal.  The High Court allowed the writ petition, set aside  the order of the Tribunal and remanded the case to the Tribunal  for fresh disposal.  After the remand, the Tribunal after hearing  the parties by its order dated 23.6.1981 held that these 4  applicants were entitled for cultivatory right to the extent of  1/4th share.  Dattoba filed Writ Petition No. 18378/1981 for the  second time calling in question the validity and correctness of  the order of the Tribunal dated 23.6.1981 alleging irregularities  in the conduct of the enquiry by the Tribunal.  The High Court  again allowed the writ petition, remitted the case to the  Tribunal for re-enquiry and disposal.  The Tribunal took up the  case for the third time after issuing notices to the parties.   The Tribunal, by a detailed order dated 23.9.1996 by majority,  granted occupancy rights in favour of the 4 branches of the  applicants to the extent of 1/4th share each as per the boundaries  shown in the order of the Tribunal dated 23.6.1981.  Writ  Petition No. 29937/96 was filed by the grandsons of Dattoba as  legal heirs challenging the order of the Tribunal dated 23.9.1996  contending that the occupancy rights should have been granted  exclusively to them.  The learned Single Judge of the High Court,  on re-appreciation of the evidence, allowed the writ petition by  his order dated 10.8.1998 holding that the occupancy rights in  respect of the said land vest exclusively in Dattoba’s branch and  remaining branches of the family do not have any share in the  said land.  Jayavantrao Desai, respondent no. 8 in the writ  petition, filed Writ Appeal No. 4310/98 before the Division Bench  of the High Court questioning the validity and correctness of the  order made by the learned Single Judge.  The Division Bench of

2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

the High Court, after considering the rival contentions, in para  9 of the order held thus:

"9.     This Court exercising jurisdiction under  Articles 226 and 227 of the Constitution of India  normally cannot re-appreciate the evidence on record  which has already been appreciated by the Land  Tribunal.  Not on one occasion but on all the three  occasions, the Land Tribunal on appreciation of  evidence on record has found that it is a joint  tenancy.  That finding of fact cannot be upset by  this Court sitting under its writ jurisdiction by re- appreciating the evidence."

       In this view, the Division Bench allowed the writ appeal,  set aside order of the learned Single Judge and dismissed the  writ petition.  Thus, the order of the Tribunal stood restored.   Hence, this appeal by the legal heirs of Dattoba questioning the  validity and correctness of the impugned order made by the  Division Bench.

       The learned counsel for the appellants contended that  having regard to the evidence both oral and documentary, learned  Single Judge was right in reversing the order of the Tribunal  holding that the branch of Dattoba was entitled for grant of  occupancy rights over the land in question exclusively; Chairman  of the Tribunal gave detailed reasons in support of the finding  that Dattoba’s branch alone was entitled for occupancy rights;  Members of the Tribunal did not agree with the Chairman and took  the view that the four applicants were entitled for grant of  occupancy rights to the extent of 1/4th share each but without  assigning reasons and without considering the evidence brought on  record; the learned Single Judge was right in reversing the order  of the Tribunal as it was based merely on majority opinion there  being no support either in law or on facts.

       In opposition, the learned counsel for the respondents made  submissions supporting the impugned order.  According to them,  the learned Single Judge exercising jurisdiction under Articles  226 and 227 of the Constitution of India ought not have set aside  the order of the Tribunal by re-appreciating the evidence as a  court of appeal.  The learned counsel also submitted that having  regard to the undisputed fact that 4 applicants come from the  same family of common ancestor and belong to different branches  of the family, all the 4 applicants were entitled for grant of  occupancy rights over the land in question to the extent of 1/4th  share each.  It may be stated here that the landlords have not  chosen to contest the proceedings.

       We have carefully considered the respective submissions  made on behalf of the parties.  The facts found in the case are  that: Dettoba Desai applied for grant of occupancy rights over  the entire survey no. 43 measuring 2 acres and 23 guntas claiming  to be the protected tenant over the said land for over 50 years.   Baburao Desai, Bishwasrao Desai and Jayawantrao Desi applied for  grant of occupancy rights in respect of the same land requesting  for grant of occupancy rights over their share of land which they  were cultivating since about 15 years after partition in the  family properties.  The landlord did not contest the case as  already stated above.  The 3 applicants who claimed grant of  occupancy rights over their share of the land produced a copy of  compromise deed effected during the year 1962 between the  applicant Dattoba and the landlord.  The land in question was  item no. 4 in the compromise deed with respect to which it was  stated that the said land shall remain in the possession of all

3

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

the four.  The 3 applicants also requested for spot inspection of  the suit land by the Tribunal.  The Tribunal visited the land on  20.8.1975 in presence of all the applicants and made enquiries  with the adjacent land owners.  From the local enquiry and spot  inspection, the Tribunal was satisfied that the suit land was in  possession of all the 4 applicants and they were cultivating  personally their respective shares of land as tenants.  The  applicant Dattoba did not adduce any oral evidence to rebut the  claims of the 3 applicants.  However, he relied on R.O.Rs. of  1965-66 and 1973-74. No doubt, entries in these R.O.Rs. showed  the name of Dattoba as cultivator. The 3 applicants stated that  the entries in the R.O.Rs. remained in the  name of Dattoba,  being the manager of the joint family but after partition, each  one of them was cultivating personally his respective share of  the land.  The Tribunal accepted the case of the 3 applicants  recording that it was satisfied that the 3 applicants were in  actual possession of the suit land and were entitled for grant of  occupancy rights in respect of their respective shares.   Accordingly, the Tribunal granted occupancy rights to all of them  by its order dated 20.8.1975 according to their possession over  the respective shares of the land.  Dattoba filed the writ  petition challenging this order of the Tribunal.  The High Court  allowed the writ petition, set aside the order of the Tribunal  and remanded the case to the Tribunal for fresh disposal.  After  remand, the Tribunal by its order dated 23.6.1981 again held that  all the 4 applicants were entitled for cultivatory rights to the  extent of 1/4th share each.  As can be seen from this order,  majority of the Members of the Tribunal concluded that all the  four applicants were entitled for occupancy rights in the land in  question to the extent of 1/4th share each but the Chairman of the  Tribunal did not agree with the majority. Ultimate decision by  majority was that each one of the applicants was entitled for  grant of occupancy rights in respect of his share in the land.   Dattoba filed second writ petition challenging the order of the  Tribunal contending that occupancy rights should have been  granted exclusively in his favour over the entire land in  question alleging irregularities in the conduct of the enquiry by  the Tribunal.  This time also, the High Court set aside the order  of the Tribunal and remitted the case to the Tribunal for re- enquiry and disposal.  After holding re-enquiry as directed by  the High Court for the third time, the Tribunal by majority  concluded that all the four applicants were entitled for grant of  occupancy rights over their share of land.  Four Members opined  to grant of occupancy rights in favour of all the four applicants  according to their shares but the Chairman did not agree with  them.  The effective order ultimately was that all the four  applicants were granted occupancy rights over the land in  question to the extent of their shares.  Aggrieved by the said  order of the Tribunal, Dattoba approached the High Court for the  third time by filing a writ petition questioning the validity and  correctness of the Tribunal.  Learned Single Judge of the High  Court, on re-appreciation of the evidence placed on record by his  order dated 10.8.1998, held thus-

"The evidence on record overwhelmingly and  conclusively indicates that Survey No. 43 vested in  Dattoba’s branch and that the remaining three  branches of the family did not have any shares in it.   Under the circumstances, the order passed by the  Tribunal will have to be set aside.  The modification  that is necessary is that it will have to be declared  that the occupancy rights that have been granted in  respect of Survey No. 43 vest exclusively in  Dattoba’s branch and remaining branches of the family  do not have any share as far as this land is

4

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

concerned."

       One of the applicants, namely, Jayawantrao Desai filed writ  appeal before the Division Bench of the High Court calling in  question the validity of the order made by the learned Single  Judge.  The Division Bench of the High Court found fault with the  order of the learned Single Judge and held that the learned  Single Judge could not upset finding of fact recorded sitting  under writ jurisdiction by re-appreciating the evidence.  The  Division Bench of the High Court in the impugned order observed  that all the four applicants were close relatives; three  applicants from the beginning claimed occupancy rights  in  respect of their respective shares of land; the tenancy of the  land stood in the name of their grandfather who was holding  tenancy on behalf of the entire family; two times the matter was  remanded and three times the Tribunal, appreciating the material  on record, held that all the applicants were entitled for  occupancy rights and that original tenancy was a joint tenancy;  the Division Bench also referred to a document of the year 1919  and observed that in the said document, name of the grandfather  of the appellant, Jayawantrao Dessai, found place;  spot  inspection was made by the Tribunal and it was found that all the  four applicants were in possession of the land.  The Division  Bench also found that the approach and appreciation of the  material on record by the learned Single Judge was wrong and he  ignored the effect of the spot inspection made by the Tribunal.   Although the Chairman of the Tribunal in the third order after  remand found in favour of the applicant Dattoba on the basis of  entries of R.O.Rs. and land revenue receipts, other members did  not agree.  It is true that in the third order made by the  Tribunal which was set aside by learned Single Judge in the writ  petition, the Chairman has given detailed reasons in support of  his opinion, the remaining four Members of the Tribunal held in  favour of all the four applicants but have not given reasons to  come to the conclusion that all of them were entitled for grant  of occupancy rights in respect of their respective shares.  It  may be remembered that four Members of the Tribunal were non- official Members, they were not members judicially-trained.   Although they have not given reasons in support of their opinion,  their opinion could be supported on the basis of material on  record particularly taking note of the fact that the Tribunal  consecutively three times found as a fact that all the four  applicants were cultivating the respective shares of their land.   We are conscious that in the first two rounds, the orders of the  Tribunal were set aside by the High Court on finding some  irregularities in the procedure followed; those orders did not  exist for consideration for the Tribunal deciding the matter for  the third time but the evidence and material that was available  on record was not erased.  No doubt, the R.O.Rs. showed the name  of Dattoba as the cultivator in respect of the entire land but  the Tribunal having due regard to the spot inspection and local  enquiry with the adjacent land owners, compromise deed showing  partition in 1962 and also taking note that Dattoba being the  manager of the joint family earlier, his name alone was found in  the record of rights, came to the conclusion on facts that all  the four applicants were entitled for grant of occupancy rights  over their respective shares of land. In somewhat similar  circumstances, this Court in Mohan Balaku Patil and others vs.  Krishnoji Bhaurao Hundre (Dead) by LRs. [(2000) 1 SCC 518],  dealing with the presumption available as to the correctness of  entries in the record of rights under Section 133 of Karnataka  Land Revenue Act, 1964 and displacement of such presumption by a  finding of fact to the contrary in enquiry made by the Tribunal  under Section 48-A of Karnataka Land Reforms Act, 1961, in  paragraph 4 has observed, "When, in fact, the Tribunal made local

5

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

enquiry by spot inspection and had come to the conclusion that  the appellants were in possession, that factor should have  weighed with the appellate authority............ Presumption  arising under Section 133 of the Act in respect of the entries  made in the Record of Rights stood displaced by the finding of  fact recorded that the appellants were in actual possession of  the land and were cultivating the same............" The Division  Bench of the High Court, in our view, was right in taking  exception to the order of the learned Single Judge in upsetting  the finding of fact recorded by the Tribunal while exercising  writ jurisdiction.  Thus, having regard to the facts found,  looking to close relationship between the parties and also  considering spot inspection and the local enquiries made with the  adjacent land owners, in our view, the order of the Tribunal  holding that all the 4 applicants were entitled for grant of  occupancy rights ought not to have been reversed by the learned  Single Judge.  Finding of fact recorded by the Tribunal, in the  light of what is stated above, could not be said to be either  perverse or based on no evidence or was bad for non-consideration  of material evidence brought on record.  By the impugned  judgment, Division Bench has rightly set aside the order of the  learned Single Judge and dismissed the writ petition.   

       This being the position, we do not find any good ground or  valid reason to interfere with the impugned order.  Consequently,  the appeal stands dismissed.  Parties to bear their own costs.