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
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
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
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
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.