ORDER
R. Gururajan, J.
1. The petitioner-Devidas Annappa Shetty is challenging an order dated 80-11-1981 passed by the Land Tribunal, Honnavar bearing No.
LRT.SR.37/455/314/643/508/341/744.
2. Facts.–The petitioner’s predecessor Thimmappa Shetty and the third and fourth respondents’ predecessor Lakshman Shetty and fifth respondent’s predecessor Manjunath Shetty constitute a joint family. There was a partition in the family in the year 1941. Property belonging to the joint family was divided amongst the respective branches in 3 equal shares in terms of a partition deed dated 23-7-1964. The petitioner’s predecessor was allotted 34 guntas of land in Sy. No. 62/1 and the ownership property in Sy. No. 65/3 was allotted to the predecessor of the petitioner. The father of the petitioner continued cultivation of the property during his lifetime. The petitioner is in actual possession and cultivation of the land. The father of the petitioner filed Form 7 claiming occupancy rights. The other respondents also sought occupancy rights. The Tribunal without considering the partition deed granted occupancy rights in favour of respondents 6 and 7 in respect of Sy. No. 62/1. The ownership property of the petitioner is granted in favour of the fifth respondent. The petitioner is challenging this order in this petition. Initially, the petitioner filed a writ petition in W.P. No. 8031 of 1983 and the same was transferred to the Appellate Authority in terms of an order of this Court. In the light of the abolition of the Appellate Authority, the matter is again before me by way of a writ petition in terms of the order of this Court.
3. The respondents have entered appearance. They are represented. Parties are heard in the matter.
4. Sri E.G. Hegde, learned Counsel appearing for the petitioner reiterates the facts and grounds raised in the petition. According to the learned Counsel, the Tribunal ought to have considered the partition and ought not to have granted rights in favour of the petitioner. He says that there is no Jahari as sought to be made out by the respondents.
5. Sri Satish Chandra, learned Counsel appearing for the respondents invites my attention to the petition averments and the order to contend that the Tribunal is fully justified in the order. The Counsel also says that the order sheet maintained by the Tribunal is to be accepted. He further says that the petitioner is estopped from questioning the impugned order. In the light of the rival submission of the parties, I have carefully perused the material on record.
6. This Court has to notice that the parties are related to each other. Claims were made before the Tribunal. The order dated 30-11-1981 states that all the applicants were present and they state that they are the tenants in respect of these lands. The Tribunal also states that after noticing Jahari, the Tribunal has chosen to provide occupancy rights in terms of an agreement between the parties. A contention is raised that there is no Jahari as such. Let me see as to whether this plea is available to the petitioner. It is seen from the averments made in the writ petition itself that Jahari is signed by all the parties. Annexure-C is signed by the petitioner himself. The petitioner does not dispute his signature in Annexure-C. However, the learned Counsel contends that Jahari, as such is not available on record. No grounds as such are raised in the petition, which is filed way back in 1983. There is also no allegation with regard to either fraud or collusion with regard to the joint Jahari. In fact, in the grounds in the writ petition, it is mentioned that the Tribunal has proceeded to pass orders on the basis of a joint Jahari alleged to have been submitted by the petitioner. In the absence of any acceptable challenge being made against the joint Jahari, I am not able to accept the arguments of the petitioner with regard to Jahari to nullify an order based on an agreement of all parties particularly, when they are near relatives. A further argument is advanced that Jahari is not there. From a reading of the petition averments and Annexures-C and D, I am not inclined to allow this petition only on that ground. Moreover, there are several other parties to this litigation. Except this petitioner, nobody has raised their fingers regarding the crisis. All others have accepted the same. Therefore, I do not want to unsettle a settled order at the instance of one person to the detriment of a settlement itself. In these circumstances, this argument is rejected.
7. The Counsel for the petitioner states that there is a partition between the parties and therefore the Tribunal ought to have allotted in terms of a partition deed. When the parties themselves go and submit that the property may be divided in a particular manner, the Tribunal has acted on that statement made by them. Nothing prevented the petitioner to say that the division may be in accordance with the partition deed. He has not said so. He is also a beneficiary of the settlement. It may be seen that notwithstanding a partition, the parties have agreed for occupation of land for various reasons best known to them for the purpose of occupancy rights. In the absence of any request to grant in terms of the partition deed by the parties, a presumption can be drawn that impliedly, the parties did not want to act on the partition deed in their own interest. Moreover in the petition it is not stated anywhere that the petitioner wanted the Tribunal to pass an order on the basis of a partition deed. In these circumstances, the attack of the petitioner on this ground is also not acceptable to me.
8. The Counsel for the petitioner also says that Rule 17(5) is violated. I am afraid that this plea is not available to the petitioner. Rule 17(5) deals only with regard to the cross-examination of the parties. It does not deal with a case of the present situation. Hence, Rule 17(5) has no application. The petitioner strongly relies on a judgment of this Court in the case of Purandara v. Devaru, 1983(1) Kar. L.J. Sh. N. 39 . A reading of the short notes would show that subsequent to their presenting applications, there was a partition and it was not a case of joint request with regard to allotment of lands as an dccupant. That stands on a different footing. That judgment is not applicable. That was a case of disposal of a case by affidavits without cross-examination. The said case is one out of context. Hence, the said judgment is wholly inapplicable.
9. On the other hand, the learned Counsel for the respondents has shown me three judgments in Katikara Chintamani Dora and Ors. v. Guatreddi Annamanaidu and Ors., , AIR 1982 SC 1259 (sic) and Smt. Raksha Rani v. Ram Lal, .
10. In Katikara Chintamani Dora’s case, supra, the Supreme Court has ruled that a consent decree is in estoppel, as I see from the judgment. The Court has ruled in para 59 as under;
“Be that as it may, the bar to an appeal against a consent decree in Sub-section (3) of Section 96 of the Code is based on the broad principle of estoppel. It presupposes that the parties to an action can, expressly or by implication, waive or forgo their right of appeal by any lawful agreement or compromise, or even by conduct. Therefore, as soon as the parties made the agreement to abide by the determination in the appeal (A.S. 668) and induced the Court to pass a decree in terms of that agreement, the principle of estoppel underlying Section 96(3) became operative and the decree to the extent it was in terms of that agreement, became final and binding between the parties. And, it was an effective in creating an estoppel between the parties as a judgment on contest. Thus, the determination in A.S. 668 – that Kadakalla was not an ‘estate’ – became as much binding on the respondents, as on the parties in that appeal”.
11. In the case on hand, all parties have induced the Tribunal to pass an order based on Jahari. Now this Court cannot set at naught, the said order at this length of time to the detriment of all others. This judgment comes to the aid of the respondents. In the light of the principles laid down in this case, the petitioner’s challenge has to be rejected.
12. In AIR 1982 SC 1259, the Supreme Court has ruled that a presumption is to be attached with regard to Court proceedings. In the case on hand, the petitioner admits his signature. The petitioner does not say anywhere in the petition that the same is obtained by fraud and collusion. Therefore, the petitioner is not right in contesting the same, after being a party to it.
13. In fact, the Punjab and Haryana High Court has ruled in Smt. Raksha Rani’s case, supra, that the statement made by a party recorded in Court amounts to documents and that can be relied upon.
14. The judgments cited by the respondents are squarely applicable to the facts of this case.
15. It is also to be noticed at this stage that if the petitioner is very serious about the same, he should have brought to the notice of the Tribunal by way of modification or correction but legally, nothing has been done. The conduct also requires rejection.
16. Taking into consideration, an overall view of the matter, I do not think that I should exercise my discretion to set at naught an order
based on agreement at the instance of one person who admits his signature in this petition.
17. In the result, this petition stands dismissed. Parties to bear their
respective costs.