SOURCE:- K.T. Venkatappa and
Ors. vs. State of Karnataka and Ors. (19.02.2019 - KARHC) : MANU/KA/0882/2019 -
JUSTICE S SUJATHA
In the case of Basavaraj Vs.
State of Karnataka 1982 (2) KLJ 531, the cognate bench of this court while
examining the applications filed by the son during the life time of his father
claiming conferment of occupancy rights, held that a son is the member of the
joint family, the question to be considered is what is the interest of a son in
the lease hold right and placed reliance on the judgment of the Hon'ble Apex
Court in Municipal Corporation of Greater Bombay Vs. Lallapunchani & others
wherein it is held that the lease hold right in an agricultural land, if it
constitutes joint family property/joint property, is partible just like any
other property of the joint family.
10. In H.R. Rama Singh Vs.
D. Nagesh Rao & another 1977 (2) KLJ 329, referred to therein, it is
observed that an employee of a Bank cultivating the lands with the assistance
of his brother is entitled to conferment of occupancy rights.
11. Considering the said
legal principles, it is observed that son as a member of the joint Hindu family
is entitled to claim conferment of occupancy rights by filing an application in
the prescribed form.
12. The Hon'ble Apex Court
in the case of Mohan Balaku Patil & another Vs. Krishnoji Bhaurao Hundre
(Dead) by L.Rs. MANU/SC/0040/1999 : (2000) 1 SCC 518, has held that when a
finding of fact has been recorded that the claimants have been in possession,
it will be startling to hold that the land-owner was himself cultivating the
land. The rent paid by the claimant to the land-owner and the partition in
their family has no bearing on the question of possession on the land and
cultivation thereof. It was thus observed that the finding of the Tribunal as
to possession and cultivation of the land by a party will prevail over entry to
the contrary in record of rights.
13. In the case of Ram Vs.
State of Karnataka MANU/SC/0768/2004 : Laws (SC) 2004 982, the Division bench
of the court has referred to the earlier decision of this court in Writ Appeal
No. 4310/1998 wherein it is observed that, 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. The finding of the Tribunal that it is the joint tenancy which
is a finding of fact can not be upset by this court sitting under its
jurisdiction by re-appreciating the evidence.
14. Having regard to the
facts found, looking to close relationship between the parties and considering
the spot inspection and the local enquiries made with the adjacent land owners,
the order passed by the Tribunal therein holding that all the four applicants
were entitled for grant of occupancy rights is held to be justifiable, more
particularly taking note of the fact that the Tribunal consequently found that
the all four applicants were cultivating their respective share of their land.
15. In the case of Vasantha
Nanasaheb & others Vs. Piraji Pandu Patil & others MANU/KA/0256/2006 :
ILR 2006 Kar 2061, in support of the case, the tenant had examined two
independent neighbouring witnesses apart from examining himself. Both the
witnesses have deposed in categorical terms that 1st respondent therein was
cultivating the property in question as tenant. Nothing worth was elicited in
their cross-examination to discard their evidence. In that context it was
observed that the presumption arising out of the revenue records stand rebutted
in view of consistent, cogent and clinching evidence relating to the party's
possession over the property in question as a tenant.
16. In the case of Mudakappa
Vs. Rudrappa & others MANU/KA/0143/1978 : 1978 (1) KLJ 459, it is held that
when one person applies for registration of lands as an occupant in his
individual name and three others apply for registration of the said lands in
their name along with the other applicant as joint occupants, it becomes the
duty of the Tribunal to decide whether only one of them was sole tenant of the
lands in question before the appointed day or whether all of them were jointly
in possession of the lands as tenants. It was observed that without deciding
the said question, it would not be possible for the Tribunal to make an
effective order under Section 48-A of the Act. What was necessary for the
Tribunal to decide is whether the tenancy in question was held by one of them
exclusively or by all of them jointly.
17. In the case of Sundara
Mesta Bin Thimmappa Mesta Vs. Land Tribunal MANU/KA/0329/2005 : ILR 2005 Kar 4513,
right course to be adopted by the Tribunal was discussed where applications are
filed by different persons in respect of the same land under Sections 48-A and
38 of the Act. It was held that the applications are in respect of the same
land, both the applications are required to be considered together, if
necessary, by setting aside an earlier order either granting occupancy right or
directing registration of an agricultural labourer as an owner thereof.
18. Division Bench of this
court in the case of Davalsab Vs. The State of Karnataka MANU/KA/7360/2007 :
ILR 2008 Kar 280, has observed that when we look at the practical difficulties,
if tenants are allowed to file more than one Form No. 7, application in respect
of the lands claimed by them as tenants pertaining to the very same landlord,
it would only lead to multiplicity of proceedings and both the landlord and
tenant would end up in litigations throughout their lives. Therefore, in view
of the provisions of Section 48-A and Rule 19 of the Act, the principle
underlying Order II Rule 2 of CPC is applicable as there is no such express
provisions under the Land Reforms Act. It was the situation where the tenant
claimed tenancy rights under the same landlord by filing two Form No. 7
applications one in the year 1974 and the other in 1976.
19. In the case of Chennappa
Moolya Vs. Seju Moolya MANU/KA/2500/2012 : Laws (Kar) 2012 458, tenants the
brothers had jointly filed declaration in Form No. 7 claiming occupancy rights
on behalf of the Joint Hindu Family as held by this court.
20. In the case of Babu Madivala
& others Vs. Kuddu Madivala & others MANU/KA/0212/2002 : ILR 2002 Kar
3417, the land Tribunal after conducting an enquiry granted occupancy rights
while deciding the issue whether the grant of occupancy rights is for the
benefit of the 'joint family' as defined under Section 2(17) of the Land
Reforms Act or the 'family' as defined under Section 2(12) of the Land Reforms
Act?
