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CASE NO.: Appeal (civil)  7119-7120 of 2000

PETITIONER: Ramachandra Krishna Bhatta

RESPONDENT: State of Karnataka & Anr

DATE OF JUDGMENT: 14/03/2008

BENCH: Tarun Chatterjee & P. Sathasivam

JUDGMENT: JUDGMENT

CIVIL APPEAL NOs. 7119-7120 OF 2000

P. Sathasivam, J.

1)      These appeals are directed against the judgment and  order dated 15.12.1998 passed by the High Court of  Karnataka at Bangalore in L.R.R.P. No. 2810 of 1989 and the  judgment and order dated 5.11.1999 in C.P. No.487 of 1999  dismissing the same. 2)      Brief facts, in a nutshell, are as under: Land bearing Survey No. 7/3 measuring 1 acre 4 guntas  (Bagayath) and Survey No. 56/1 measuring acres 21 guntas  (wet) of Kannenhalli village, Yellapur Taluq are agricultural  lands and were owned by the Gopal Krishna Devaru Temple.   The lands were granted for cultivation on tenancy basis to the  person performing the daily pooja in the temple.  No separate  rent was being paid.  Originally one Mahabaleshwar Bhatta  was performing pooja in the temple and was cultivating the  lands.  He had three sons namely, Shambu Bhatta, Narayan  Bhatta and Krishna Bhatta.  After his death, his eldest son,  Shambu Bhatta started performing the pooja in the temple  and cultivating the lands in question.  After the death of  Shambu Bhatta, Narayan Bhatta, second son of  Mahabaleshwar Bhatta, started performing pooja in the temple  and also cultivating the lands.  Krishna Bhatta, third son of  Mahabaleshwar Bhatta expired in the meantime.   After the  death of Narayan Bhatta, Thimmappa, son of Shambu Bhatta  started performing the pooja in the temple and also cultivating  the lands.  In the year 1940, Thimmappa Bhatta, respondent  No.2 herein, relinquished his rights and surrendered the lands  to the temple authorities and left the village and started  cultivating other lands thereat.  In the year 1943, the Trustees  of the temple entrusted the rights of performing pooja in the  temple and cultivating the lands to Ramachandra Krishna  Bhatta, appellant herein and his mother.  The appellant is the  son of Krishna Bhatta.  On 10.2.1948, the name of the mother  of the appellant herein was recorded in the Record of right as  protected tenant of Sy. No. 7/3 and the name of the appellant  as ordinary tenant for Sy. No. 56/1 vide Entry Nos. 198 and  238 respectively.  In the year 1953, Thimmappa Bhatta,  respondent No.2 herein, filed a suit being Suit No. O.S.  19/1953 before the Civil Judge, Junior Division, Haliyal for  partition and possession of joint family properties.  In the  plaint itself, respondent No.2 admitted that he had left the  village and gone to village Hittalli to look after the properties of  his sister.  On 31.5.1958, the trial Court held that in so far as  the scheduled lands are concerned, the properties were shown

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as tenanted lands assigned for worship of Shri Gopal Krishna  Dev Temple.  The trial Court also held that the plaintiff  (respondent No.2 herein) had given up his claim for the  purpose of the suit and that the suit insofar as it relates to  these lands is held to be incompetent for want of sanction of  Charity Commissioner.  As regards the remaining immovable  properties, there was no dispute and it was ordered to be  partitioned.  After the death of the mother of the appellant  herein, the name of the appellant was registered vide No. 303  in respect of both the surveys in the Record of rights dated  27.8.1961. In this regard, an objection was raised by  respondent No.2 herein but the same was rejected.   Thereafter, in the year 1963, respondent No.2 filed another  suit being O.S. No. 70 of 1963 for partition and possession of  the suit lands.  Prior to filing of the suit, he applied to the  Charity Commission for permission to file the suit for partition  of the suit lands.  The said request was rejected.  O.S. No.70 of  1963 was also dismissed.  Against the said judgment and  decree, respondent No.2 filed an appeal being R.S.A. No. 930  of 1973 before the High Court of Karnataka.  3)       During the pendency of the second appeal, the  Karnataka Land Reforms Act, 1961 (hereinafter referred to as  "the Act") was amended and it was, inter alia, provided that all  agricultural lands held by or in possession of tenants shall  vest in the Government free from all encumbrances.  Section  45 confers a right on the tenants to apply for grant of  occupancy rights.  Section 48 A provides for filing of  application by a tenant to the Tribunal holding of enquiry etc.   Section 133 provides that a Tribunal constituted under the Act  alone shall have jurisdiction to decide the question of tenancy  and Section 132 bars the jurisdiction of Civil Courts to decide  any question required to be decided by the Tribunal.  The  appellant herein filed an application in Form No.7 for grant of  occupancy rights.  However, no application was filed by  respondent No.2 for grant of occupancy rights either for  himself or on behalf of the joint family.  In the meantime,  during the pendency of the proceedings before the Land  Tribunal, the High Court considered RSA No. 930 of 1973 filed  by respondent No.2 herein and while allowing the appeal  remanded the matter to the trial Court for disposal on merits  by fixing the share.  On 5.11.1974, the Tribunal constituted  under the Act considered the application filed by the appellant  and held that the appellant was the tenant as on 1.3.1974 and  accordingly granted occupancy rights to the appellant.   Against the said order, respondent No.2 moved Writ Petition  No. 19619 of 1979 before the High Court of Karnataka.  The  remanded suit which was renumbered as O.S. No.34 of 1979  was decreed on 18.12.1980 holding that the defendants had  not perused all issues except issue No.5 and that as regards  issue No.5 the suit was not affected by Bombay Prevention of  Fragmentation and Consolidation of Holdings Act.   Accordingly, plaintiff \026 Thimmappa (respondent No.2 herein)  was held entitled to 2/3rd share in both the surveys.  On  9.6.1983, the High Court passed an order in W.P. No.19619 of  1979 filed by respondent No.2 by allowing the writ petition  and remanded the matter back to the Tribunal for fresh  consideration.  The Tribunal considered the application afresh  and held enquiry as contemplated in the Act and the Rules.   On 16.8.1985, the Tribunal held that the appellant alone was  cultivating the land as tenant on the appointed date and the  temple was the owner of the lands and accordingly granted  occupancy rights to the appellant.  Aggrieved by the said  order, respondent No.2 herein filed Writ Petition before the  High Court.  Consequent upon constitution of appellate  authority, the matter was transferred before the said Authority

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for consideration and was registered as DAAA: AP:  244.330/86.  On 31.1.1989, the appellate Authority held that  the lands were tenanted lands, therefore, allowed the appeal  and quashed the order of the Tribunal.  Dissatisfied therewith,  the appellant preferred LRRP No. 2810 of 1989 before the High  Court and the same was dismissed by order dated 15.12.1998.   On 5.11.1999, the review petition filed by the appellant herein  was also dismissed.  Hence, aggrieved by the said orders, the  appellant preferred the above appeals before this Court by way  of special leave. 4)      Heard Mr.R.S. Hegde, learned counsel for the appellant,  and Mr. S.N. Bhat, learned counsel for the respondents.  5)      It is the grievance of the appellant that though the Land  Tribunal, by order dated 16.08.1985, declared and granted  occupancy right in his favour in respect of the land in Survey  Nos. 56/1 to an extent of 2-21-0 and 7/3 to an extent of 1-4-0  of Kannenalli village, the Land Reforms Appellate Authority  and the High Court exercising power under the Act committed  an error in setting aside the order of the Land Tribunal and  rejecting the application of the appellant seeking occupancy  right in respect of the said lands.  In view of narration of the  facts in the earlier paragraphs, there is no need to traverse the  same once again.  It is true that on the application made by  the appellant who is the son of Krishna Bhatta and grand-son  of Mahabaleshwar Bhatta, Karnataka Land Tribunal, after  finding that the lands in question are temple lands which are  being cultivated by the applicant (appellant herein) in  recognition of his temple service and is being continuously  cultivating these lands from 1944, arrived at a conclusion that  he is cultivating the lands which belong to the temple as  tenant and, therefore, he is entitled to occupancy rights.   Aggrieved by the said decision, Mahabaleshwar Narayan  Bhatta and Thimmappa Bhatta, sons of Shambu Bhatta and  Narayan Bhata respectively and grand-sons of Mahabaleshwar  Bhata filed appeal before the Land Reforms Appellate  Authority.  The Appellate Authority, after analyzing the  materials, particularly judgment and decree of the civil court  as well as orders of the authority, came to the conclusion that  the disputed lands are joint family properties belonging to all  the three parties, namely, Ramachandra Krishna Bhatta,  Mahabaleshwar Bhata and Thimmappa Bhatta.  It is relevant  to point out that the Appellate Authority came to such  conclusion on the basis of the decree of the civil court vide  O.S. No. 37 of 1979.  The following conclusion of the Appellate  Authority is relevant: "\005Since the 3rd respondent has not taken any objection, we  come to the conclusion that the disputed lands are the  tenancy lands of undivided family of the appellants and the  3rd respondent.  From these undisputed facts, it is clear that  the right of performing the pooja of Sri Gopalkrishna deity  and other services and the enjoyment of disputed lands were  not given to the 3rd respondent, but pooja and other services  were the undivided rights of the joint family in addition to  the tenancy rights."

Based on the finding rendered by the civil court and other  materials placed before it, the Appellate Authority has  concluded: "Therefore, there is no merit in the contention of the 3rd  respondent that he alone is in possession and cultivating the  disputed lands for the relevant period and he is eligible for  the occupancy rights and we answer accordingly by rejecting  his contention."

6)      The Appellate Authority has rightly pointed out that as

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per Section 48A of the Act, it is incumbent upon the part of  the Land Tribunal to give public and personal notices before  passing an order in an application filed under Section 48.  It is  not in dispute that the Land Tribunal has not heard the  representative of Shri Gopalkrishna Devaru Temple.  A reading  of sub-section (2) of Section 48A makes it clear that on receipt  of application, the Tribunal has to issue public notice in the  village in which the land is situated calling upon the landlord  and all other persons having interest in the land to appear  before it on the date specified in the notice.  It is also  incumbent on the part of the Tribunal to issue individual  notice to the persons mentioned in the application and also to  such others as may appear to it to be interested in the land.   Sub-section (3) prescribes form of the application, form of the  notices and the manner of publishing or serving the notices.   Sub-section (4) says that where no objection is filed, the  Tribunal, after verification, pass an order to either grant or  reject the application.  As per sub-section (5) where an  objection is filed disputing the validity of the applicant’s claim  or setting of a rival claim, it is incumbent on the part of the  Tribunal to conduct enquiry and thereafter determine the  person entitled to be registered as occupant and pass orders  accordingly.  The factual finding of the Appellate Authority  shows that the Land Tribunal failed to cause either public  notice in the village or to the deity Gopalkrishna Devaru  Temple. In view of the same, it is clear that the Land Tribunal  has not fulfilled the requirement which is mandatory and the  Appellate Authority rightly interfered with the order of the  Land Tribunal and set aside the same.  7)      The Appellate Authority has also concluded that there is  no acceptable material holding that the appellant alone was  cultivating the land and entitled for the grant of occupancy  right. 8)      The High Court considered the revision petition filed by  the appellant before it under Section 121A of the Act.  A  reading of the revisional jurisdiction of the High Court shows  that only for the purpose of satisfying itself as to the illegality  or as to the regularity of such order or proceeding, the High  Court is permitted to interfere.  The High Court, in the  impugned order, very well noted the factual finding of the  Land Reforms Appellate Authority that the nature of  possession of the appellant cannot be regarded as tenant of  the land.  The High Court has also concluded that there is  absolutely no evidence in respect of its claim that he paid rent  to the 3rd respondent as a tenant under him.  On the other  hand, his plea that he was a tenant of the land was not  allowed to be raised and rejected in O.S. No. 34/79 which had  become final.  In the light of the said materials, after finding  that the Land Reforms Appellate Authority was right in  holding that the appellant’s claim of tenancy was not  established and there is no illegality or procedural irregularity  which calls for interference in revision, under Section 121,  dismissed the same.  9)      In view of the factual finding arrived by the Land Reforms  Appellate Authority and affirmed by the High Court which is a  Revisional Authority, in the absence of any acceptable  material, we are of the view that interference by this Court  under Article 136 of the Constitution of India is not warranted.  10)     In the light of the above conclusion, the appeals are liable  to be dismissed as devoid of any merit and accordingly  dismissed.  No costs.