Narayana Gowda v. Girijamma And Another

Govinda Bhat, C.J:— This appeal preferred by a land-owner in Mudigere taluk, Chickmagalur District, arises out of an application of the 1st respondent Girijamma, made under Section 45 of the Karnataka Land Reforms Act, 1961 (hereinafter called the ‘Act’), before the Land Tribunal, Mudigere taluk, for registration of occupancy in respect of 3 acres of wet land out of 5 acres 31 guntas in Sy. No. 76.P of Halemudigere village in Mudigere taluk of Chickmagalur District. The 1st respondent-Girijamma filed an application before the Tribunal on 26th December, 1974, alleging that she was personally cultivating 3 acres of wet land out of 5 acres 31 guntas in Sy. No. 76.P of Halemudigere village and that under the provisions of the Act, she may be registered as an occupant.

2. The appellant land owner opposed the said application contending that the applicant was not the tenant as defined under the Act, and that she was not personally cultivating the land.

3. On the basis of the said application, the Tribunal issued public notice under Section 48A(2) of the Act. It reads:

“Whereas the lands mentioned below have vested in the State Government under Section 44(1) of the Act and whereas the Tribunal has to determine the person who is entitled to be registered as an occupant of the said lands under Section 45.

Now, therefore, notice is hereby given to Srimati Girijamma wife of Thanna Setty, Halemudigere; (2) M.S Narayanagouda, son of Shesthegowda, Halemudigere to appear before the Tribunal on 11th February, 1975 at 11-00 a.m with documentary evidence, if any.

DESCRIPTION OF THE LAND

Taluk Village Sy. No. Area A.G Assessment Mudigere Halemudigere 76-p 3-00 13-50

place: MudigereSd—

Date: 8-1-1975Secretary of the Tribunal.

4. It is relevant to state at the very outset that neither the application of the 1st respondent-Girijamma nor the notice under Section 48A(2) of the Act, specify the boundaries of the extent of 3 acres of land in respect of which registration of occupancy was claimed. It has to be noted that the total extent of the land comprised in Sy. No. 76.P of Halemudigere village is admittedly 5 acres 31 guntas. The land being specific property, it is necessary to identify the same by giving the correct boundaries if the subject matter forms a portion or part of survey sub-division and not the whole survey sub-division. In the absence of specific boundaries, it is impossible to identify the land alleged to have vested in the State Government and in respect of which the 1st respondent-Girijamma claimed registration of occupancy. The said extent of 3 acres may be situated to the north, to the south, to the west or to the east or it might be distributed all over in several bits. It is common sense that when a person claims any specific immoveable property which is not the whole survey number or a sub-division of a survey number, that party ought to give the boundaries and description so as to clearly identify the property. If a party merely states that out of 5 acres 31 guntas of land he is in possession of 3 acres, how is it possible for anybody to identify that property and adduce evidence whether or not the property claimed by the person was cultivated by the party claiming as tenant? By virtue of Section 44(1) of the Act, all lands held by or in the possession of tenants immediately prior to the date of commencement of the Amendment Act, i.e, 1st March, 1974, stand transferred to and vest in the State Government. With a description, as given in the public notice issued by the Tribunal, is it humanly possible to identify the land said to have vested in the State Government under Section 44(1)?.

5. The parties appeared before the Tribunal. Both sides led oral evidence. The witness examined for the 1st respondent supported her case, while the witness examined for the appellant-land owner supported his case. The 1st respondent produced no documentary evidence in support of her case, while the appellant produced the certified copies of Record of Rights pertaining to Sy. No. 76.P and levy notices. The Tribunal has noted in its record “Pahanis and levy receipts are in favour of Narayana Gowda”. After noting that fact, the Tribunal felt that in its opinion, spot inspection is necessary. Therefore, the Tribunal gave notice to the parties and held local inspection. At the local inspection, it was noticed that the 1st respondent and the members of her family have been residing in a portion of the land Sy. No. 76.P and further the Tribunal has noticed that she (1st respondent) has kept hay and there is a ‘kana’ which means a thrashing floor, a cattle shed and there are agricultural implements. Such a note was made on 1st May, 1975. The notes of inspection made by the Tribunal do not disclose that its attention was directed to the portion of the land claimed by the 1st respondent. On 2nd June, 1975, the Tribunal passed an order holding that the applicant Girijamma was the occupant of Sy. No. 76.P of the extent of 5 acres 31 guntas in Halemudigere village. The reasons, in support of the unanimous decision of the Tribunal, may better be stated in its own words.

FINDINGS

6. It reads:

“…………………………………. since the applicants hut is on the land, she has her own kana and agricultural implements it is very certain that she is cultivating the and Besides, the evidence on behalf of the Khatedar is very unreliable and contradictory, as patel of Halemudigere testifies that the applicant, Girijamma came 5-6 years ago, and she came and built the house. The khatedar's father on the other hand says that Girijamma came about 10 years ago and the hut was constructed by him about 15 years ago. Thus the evidence on behalf of the Khatedar is shaky.

Spot inspection reveals that Girijamma possesses all agricultural implements, a kana and cattle shed and manure heaped and hay stacks and her hut is just alone the land. Hence, it is definite that she is cultivating the suit land, otherwise she would not have had a permanent establishment like this.

The members of the Tribunal present unanimously decide to register the applicant Girijamma as occupant for S. No. 76.P 531 acres of Halemudigere.”

7. There is no reference in the order of the Tribunal to the Record of Rights produced by the appellant-land owner which records that the lands were under the personal cultivation of the land owner and not under the alleged tenant. The Record of Rights are maintained under the Karnataka Land Revenue Act, 1964, and therefore, is a public record. Section 127 of the Land Revenue Act states that a Record of Rights shall be prepared in the prescribed manner in respect of every village and such record shall include the following particulars:—

“(a) the names of persons who are holders, occupants, owners mortgages, land-lords or tenants of the land or assignees of the rent or revenue thereof;

(b) ……………………..

(c) ……………………..

(d) ………. (omited as unnecessary) ……..”.

Section 133 of the Land Revenue Act states that an entry in the Record of Rights and a certified entry in the Register of Mutations shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.

8. When it is undisputed that the Record of Rights pertaining to the land in question shows that the land has been under the personal cultivation of the land-owner and that it was not a tenanted land and the 1st respondent's name does not find any place therein, the law draws a presumption that the statement contained in the Record of Rights is true until the contrary is proved. There is not a word in the entire proceedings of the Tribunal giving reasons how the contrary has been proved.

9. As stated earlier, the 1st respondent had claimed that she was a tenant only in respect of 3 acres of land. The public notice issued to the land-owner also stated that 3 acres of land had vested in the State Government and objections were called for in that regard. The Tribunal gave no reasons to hold that the 1st respondent Girijamma was a tenant in respect of the entire extent of 5 acres 31 guntas comprised in Sy. No. 76.P of Halemudigere village. The Tribunal has the jurisdiction to register a tenant as an occupant of a land which has vested in the State Government under Section 44(1) of the Act. When it is not the case of the Tribunal in the notice issued under Section 48A(2) that more than 3 acres of land out of Sy. No. 76.P had vested in the State Government, it needs no argument to say that the Tribunal had no jurisdiction to order registration of occupancy of land in excess of 3 acres.

10. There is one more reason to hold that the entire proceedings of the Tribunal commencing with the issue of notice under Section 48A(2) are vitiated as it has resulted in the failure of justice. The land-owner can meet the case of the claimant for registration of occupancy if the notice issued under Section 48A(2) contains the boundaries of the portion of the survey number which has been alleged to have vested in the Government. The order of the Land Tribunal clearly comes within the categories of orders which can justifiably be called as a perverse order. An order made in conscious violation of the pleading and law, is a perverse order. A perverse order made in contravention of the basic principles of rules of natural justice cannot be allowed to stand uncorrected.

11. The learned single Judge before whom the order was challenged, has not dealt with any one of these grounds and unfortunately has upheld the order limiting the right of the 1st respondent for registration of occupancy to the extent of 3 acres leaving to the Tribunal to identify that portion of land.

12. This Court is reluctant to interfere with a finding of fact made by the Land Tribunal. But, where the order of the Tribunal violates the essential principles of rules of natural justice or it exceeds its jurisdiction or commits a serious error in the exercise of its jurisdiction or if the order is perverse in the sense that there is a conscious violation of the pleading or law, such an order cannot be allowed to stand uncorrected. Therefore, we have no hesitation in allowing this appeal and quash the entire proceedings before the Tribunal commencing with the notice issued under Section 48A(2) of the Act, and ending with the final order. The Tribunal is at liberty to issue a proper notice in accordance with law and in the light of this judgment.

13. The appellant is entitled to his costs which shall be paid by the Land Tribunal 2nd respondent. Advocate's fee Rs. 250.