IN THE HIGH COURT 0? KARNATAKA 'AT
DHARWARD %% AA % % % ' . 2
Dated this the 1"
THE HON'BLEufvi§.: ngsficn
VA &
THE HQ1\z'BL13 MR. GOWDA
% f %V . fi2®3l (LR)
Col. ".. (Retired),
Son ofiiaghunath'
Aged abt:~b:t"?1 year§',.
Residem 0T~Kt1i}dgoi, Dha: ivad District.
' FA -- Appellant
L X Lsm of Kamataka to be represented by its
ASe'c1'etary, Deparunent of Revenue,
" Buildings, Bangalore-560 O01.
- The Tahsildar, Kundgol-58}. 113,
Taluk Ktmdgol, District Dharwad.
' 3. The Assistant Commissioner,
Savanur Sub Division, Savanna",
District Dharwad (since abolished)
Now coming under Assistant Commissioner,
Dhamrad Sub Divisiorz, Dharwad-580 091.
4. Sri Maiiappa s/0 Siddappa Mayannevar,
Aged about 73 years, Occ: Agriculturist
Rfa Pure-Kundgol--58§ 133,
Kundgol Taiuk, Dharwad é
ea. Sri Siddappa alias Ajjappa Maya11i:ev2ir,T " "
S./e late Mallappa Mayannawpr,
Aged about 35 years, rfo
A1 and Post: Kundgol, Dha:'vu*edV'Dist. V
5. Sri Basavannappa --
Since deceased by his 'LR Q} e --
6. Sri Ramappzg Vsfe 'fvitayatxziasraf,
Aged about 4:;.yeazs; 'Ag"~ie1i1ti1a:-ist..§
R/a P1;."a-.!{t;riég(;71-58._i._1;Ii3, V '
---- _ ' ' - Respondents
(by Sri ESLB. Ai-':A'for R} to R3,
by Sri V."R. Dates', 13.£ijv,_Fer '
by Jayakumar S. Patil}¢meocia_1ee for R5A,R6)
This w§-i:.eAppea; gs flied under Section 4 of the Karnataka High
'pre.ying't'e .se_t___eeide the order passed in the W1'. No. 3548/1989
% "da§ei127;;f'}'1'.2i}Q4
V' coming for preiiminary hearing on this day,
'SH N;3,'eidelive1*ed the feilowing judgtnent.
JUDGMENT
* ‘ appellant has challenged in Qis appeal, the order passed by the
‘ Single Judge, who has set aside the order passed by the Assistaat
“Commissioner as well as the Tahasiidar in a proceeding initiated under
Section 15 of the Kamataka Land Reforms Act for surrender of the land by
an Ex-Serviceman, in so far as grant of occupancy rights in res.pécf”cf’ihe
share of other members of the family of the appellant,
2. The subject matter of this proceedixagiiis
aczes and 8 guntas and Sy. No. 74/1 meastujing 22 »
Put village, Taluk, Kuedgei, Dharwad Dietrie. It is me eeeemee that they
are the ancestral properties of who the year
1972 ieaizing behind his wife them being the
appellant. The and he retired in the
year 2988. %%%% H
3, The iands in question were leased in
favour ef ‘V to 1950 and his name has been
He was recognized as an ordinazy tenant
undér– fhe Bombay Tenancy and Agicuitural Lands Act.
The appéllaxxt enaeree%T£ami1y members were residents of Bcigaum. In the
_ .. 959 fhe a;;f:eIlmfi’s father agreed to sel! the lands leased to Siddappa
Megeeeaee: for Rs. 12,000;-, A sum of Rs. 12209;- was paid. The
fippcllmgzt and other children of Raghunath Kolhatkar refused ta) execute the
Deed. Therefore Siddappa Mayannavax fileti a suit in 0.8. No.
1%/,
17! 1974 before the Civil Judge at Hubli for specific perfermance; ‘Stilt
came to be dismissed on the ground that it was a
01.03.1974, it vested with the State and therefoife’ no”
perfonnazzce could be granted. It: the said
eontended that the lands in question ieffifiointii L’
father had no authority to execute the: it is not
binding on them. It is efrplication in form no.
7 for grant of occupaeeyifiglits. 7 was rejected on
the ground that to preferred W.P. No.
7i2fl978 which by setting aside the order of the
Land Tribune! back for fies}; consideration.
eflggain byedated the Tribunal rejected Form No. 7 against
eee zsiegzoevs/1979 was filed which was allowed by order dated
». 20.021 the matter for flesh consideration.
.V in fiieaevefhile the proceedings were initiated under Section 15 of
Refonns Aet by the appellant for resumption of the
the ground that he is an Ex-Serviceman and he is entitled for
The Tahasildax after enquiry by order dated 11.05.1984
accepted the case of the appellant direct resumption of land and eviction of
1/
tenant. Against the said order the tenant preferred
Assistant Commissioner which came to be i
said order was challenged before thisVCo4tnt Nod». L»
18.03.1989 possession of the lands
However by an order Sy. No. to be in the
possession of the landlord 74/1 was takm
back by the same to the tenants.
Ultimately i2l1.04. 1989. The said order
was challenged was allowed on 04.01.1991
remitting the itiietteribeciz to Single Judge for decision on merits.
§.if{6I’ suehireinanditlie. “order is passed setting aside the order of
unwell as the Assistant Commissioner on the gonad that
2 _ ‘vriotiiij’eeorded the findings that whether the lands in question
i absolutely to the appellant or it is a joint family property.
« V While making remand, as the fact that the appellant was an Ex-
sssseman was not in dispute and he had made an application for
“”ri$tiihption, the resumption of land in so far as the appellant is eeneeroed,
ii ii.e.,ihis share is not disturbed. The remand order is elear that the authorities
have to find out whether other family members have a right in the wwfl
/”‘/H
or they have relinquished their right in favour of the appellant,
he is entitled for resumption of the entire land. Aggieved by;ti*’1’ei _
the appellant is before the Court.
4. Sri PA Kulkami, learned counsel for.Vthei_iaiipellarit
impugned order contends the material elearly the” i
name of the appellant alone was.’ entered iii’-thei.reveziee’~reeords. It is
because, the other members in -rurangernent, have
relinquished their in the Secondly he
contends the other; was made by
other rrzembeis, for resumption. When the
resumption orderiwes contested, the matter went upto
Sepreane has accepted the case of authorities and
order4.lresumption. Lastly he contended when possession of
Vsy. Not it/3’%i to the appellant as far back as on 19.03.1989
ife._«.andVhe isuiirz. eontiziuous possession for the last 25 years he cannot be
point of time. Therefore he contends the learned Single
sliuefgeeas is justified in holding that the material arid the finding of the
it i do not conclusively establish that the property exclusively
lifbelongs to the appellant and an enquiry in this regani is required.
5. Per contra, learned counsel for the respondents en
earlier civil proceedings in (3.8. No. 71/1974 the 4′
contended that the agreement of sale executed’ byéhisui ‘ 1.
joint family property is not binding on thein ‘is is
contend that he has beearne absolute’–oiVner ziiidV.thei:eiii.jre”‘~~he”‘s:1hn1it’1ed i
order of in». learned Single .I;1dgeé..lis’ –ii_:ro;§erd…andii idoes..~not call for
interference.
6. From the afoi5esai§i’l’inateiiaf zitis ¢i¢e:’L5eiand bearing Sy. No. 73/1
and 74:1 oaigiiialiiifrwasl The father of the 4*”
respondent the land even prior to 1950’s. Their
name findpvlaceiin feeords. The agreement of sale executed
iiEsy.1;he afifi*ell_ent’s fathei inhisifavour is not in dispute. The suit for specific
to be dismissed on the gound that tenanted land vested
with ‘the and therefore cannot be decreed. in the said
~ appellant has specifically contended that the said property
i property. They are not parties to the ageement of sale.
V father had no authority to bind their interest. 1: is after that stand afier
iiiI.03.l9’74 the present proceedings were initiated for resumption of the
land on the gonad that he is an Ex-Serviceman for whom the Act extends
benefit. The benefit of resumption is given to an Ex Serviceman. It is also
extended on his death to his legal heirs but the benefit of resuntpiipeepis not
extended to the joint family of Ex-Serviceman consisting
and father. Therefore when an application for resumptioiitljiswp
he is ezztitled to resumption of the entire oi’ T.
he is the absolute owner of the said” oreiei _v
presupposes that the applicant is the contends
that it is a joint family leaseil the property to
them, the aethority under the enquiry and find out
first Whethte the –tlVle~«i.’e_bsolt1tei owner of the land or property
belongs to the ggtttttpfantily holds that the applicant is the absolute
owner thee the 0i1ftv’ieI”ii0ft4?E’:StJtt11;)iliO1t to the entire extent of land sheuld
7. ii Itiithei ease it is not in dispute that the appellant is an ex
lift; is also not in dispute that he has a share in the property as 3.
i the joint family. Therefore rightly the authorities as well as the
it’ leereed single Judge were justified in ordering fer resumption of the land to
extent of appellanfs share in the property in dispute. But without
i’ recordiflg a finding based on legal evidence the authorities could not have
V.
ordered for resumption of the entire extent of land.
which reliance is based show that he is the habsolnte ” .
relinquishment pleaded is legal and valid, Viwlaetlterl itie
property, in the joint family there tee mg l
arrangement they have relinquished of tlt-fie appellant
is a matter which requires to before
ordering for resurnption fire perusal of order
by the Tahasildar am indicate application
of mind by {nose Therefore the learned Single
Judge was in order and remanding the matter only
£otl1e extent or share er njember of the family for gant of occupancy
iteleer in so far as the appellant is eeneemed the order ef
_ L ta” ~_exte;E1’t”of his share remains undisturbed.
~V Inlulour i=le1=§* the approach of the learned Single Judge is proper and
. ecfilitebleo and tree do not find any reasons to interfere with the said order. In
_th.e.~preeeedn1gs there is an interim order in which the entire Sy. No. 73/} is
‘ to the custody of the appellant and Sy. No. 7411 entire extent was
gt/en to the custody of the 43’ respondent and new they are enjoying the
property. It is also made clear till the enquiry is concluded the partim shall
153//..
maintain status quo in so far as possession of Sy. No. 73/’ I atgd 1
is concerned as per the earlier order passed by this we
the following order.
Order
a) The appeal is allowed in part. V 4′ __
b) The order of remand byfh.’e” Jfidge is affixmed
with the modification back to the
Tahasildar for with law.
o) It is ' passed in favour of the to undisturbed. d) The as far as Sy. No. 73/1 and Sy.
No. V’_’/’3f2 of the earlier interim order referred
Sd/~
JUDGE
sd/-
JUDGE
‘% e W