WA NO.200503 OF 2016 1 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS 05th DAY OF FEBRUARY, 2025 PRESENT HON'BLE MR. JUSTICE R. DEVDAS AND HON'BLE MR. JUSTICE G. BASAVARAJA WRIT APPEAL NO.200503 OF 2016 BETWEEN: 1. SMT. AMINA W/O LATE MURTHUJASAB RISALDAR, AGED ABOUT: 78 YEARS OCC: AGRICULTURE, 2. SRI MOHAMMAD HANIF S/O LATE MURTHUSASAB RISALADAR AGED ABOUT 55 YEARS OCC: AGRICULTURE , 3. SRI LALASAB S/O LATE MURTHUSASAB RISALADAR AGED ABOUT 65 YEARS, OCC: AGRICULTURE, 4. SRI KASIMSAB S/O LATE MURTHUSASAB RISALADAR AGED ABOUT 45 YEARS OCC: AGRICULTURE, ALL ARE R/O KILLAGALLI, MUDDEBIHAL - 586 212 DISTRICT: VIJAYAPUR. 5. SMT. HUSSENBI W/O DONGALI SAB AVATI AGED ABOUT 58 YEARS WA NO.200503 OF 2016 2 R/O AVATIGALLI, NALATHVAD MUDDEBIHAL - 586 212 VIJAYAPUR DISTRICT. 6. SMT. MEHABOOBI W/O HUSSENSAB MULLA, AGED ABOUT 50 YEARS R/O KILLAGALLI, MUDDEBIHAL - 586 212 VIJAYAPUR DISTRICT. …APPELLANTS (BY SRI SREEVATSA S, SR. COUNSEL FOR SRI R.S. SIDHAPURKAR, ADVOCATE) AND: 1. SRI LAXMINARAYANA SHIVARAM NAVAD S/O LATE SHIVARAM NAVAD AGED ABOUT 87 YEARS, R/O OPP. MUNICIPAL OFFICE MAHANTESH NAGAR MUDDEBIHAL 586 212 VIJAYAPUR DISTRICT. 2. SRI JANARDHANA SHIVARAMA NAVAD S/O LATE SHIVARAM NAVAD AGED ABOUT 84 YEARS, R/O OPP. MUNICIPAL OFFICE MAHANTESH NAGAR MUDDEBIHAL 586 212 VIJAYAPUR DISTRICT 3. SRI SHANKARNARAYANA SHIVARAM NAVAD S/O LATE SHIVARAM NAVAD AGED ABOUT 80 YEARS, R/O NO.18/01, 1ST MAIN ROAD VIJAYARANGAM LAYOUT BASAVANAGUDI, BENGALURU 560 004 4. SRI SURESH SHIVARAMA NAVAD S/O LATE SHIVARAM NAVAD AGED ABOUT 65 YEARS, WA NO.200503 OF 2016 3 R/O NO.6, 1ST 'G' CROSS SUBBANNA GARDEN VIJAYANAGAR, BENGALURU 560 040 5. THE STATE OF KARNATAKA BY ITS SECRETARY TO THE REVENUE DEPARTMENT M.S. BUILDING, BENGALURU 560 001 6. THE LAND TRIBUNAL MUDDEBIHAL AT MUDDEBIHAL - 586 212 BY ITS CHAIRMAN. …RESPONDENTS (BY SRI AMEET KUMAR DESHPANDE, SR. COUNSEL FOR SRI SACHIN M MAHAJAN, ADVOCATE FOR R1 TO R4; SRI MALLIKARJUN SAHUKAR, AGA FOR R5 AND R6) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO CALL FOR RECORDS, ALLOW THE APPEAL AND SET ASDIE THE ORDER DATED 30.08.2016 PASSED IN WP NO.100497-50 OF 2013 (LR-RES) AND DISMISS THE WRIT PETITION WITH COSTS. THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 17.12.2024 AND COMING ON FOR "PRONOUNCEMENT OF ORDERS" THIS DAY, BASAVARAJA J., PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE R. DEVDAS and HON'BLE MR. JUSTICE G. BASAVARAJA WA NO.200503 OF 2016 4 CAV JUDGMENT (PER: HON'BLE MR JUSTICE G BASAVARAJA) 1. This intra-court appeal is preferred against the order dated 30th August, 2016 passed in Writ Petitions No.100497– 500 of 2013 by the learned Single Judge. 2. Brief facts leading to this appeal are that, appellants contend that they are the tenants of land bearing Survey No.76, measuring 17 acre 19 guntas situate at Muddebihal, Vijayapur District. Earlier, one Murthujasab son of late Kasimsab Risaldar was the protected tenant of the said land. His name was entered in the revenue records as protected tenant under Mutation Entry No.604. However, subsequently under Mutation Entry No.735, his name was entered as an ordinary tenant and was continued to be in possession and occupation of the land in question. On coming into force Act No.1 of 1974 with effect from 01st March 1974, the children of deceased Murthujasab Risaldar filed Form No.7 for grant of occupancy rights before the respondent No.6 herein. The said Application was registered in File No.LRM/72/SR–9+15 on the file of respondent No.6. On an earlier occasion, the Land Tribunal rejected the said application and therefore, one Dastagirsab and others filed Writ Petition No.8044 of 1983, the said writ petition was allowed and the matter was remanded to WA NO.200503 OF 2016 5 the Land Tribunal for holding enquiry afresh, in compliance with the Rules. Subsequently, the Land Tribunal again rejected the said application on 02nd September 1985, holding that the appellants are not the tenants. This order was challenged by the appellants herein in Writ Petition No.29820 of 1997 which came to be allowed vide order dated 26th May, 1999, and the matter was again remanded to the Land Tribunal. After remand, enquiry was held by the respondent No.6-Land Tribunal and after considering the records of the case, the Land Tribunal granted occupancy rights to the appellants on 23rd November 2012. 2.1. The grant of occupancy right was challenged by respondents 1 to 4 in Writ Petitions No.100497–500 of 2023. The ground raised in the writ petition is that, earlier the said land belonged to one Channabasappa Deshmukh and was a part and parcel of Kesapur Estate. There were litigations in the family of the said Channabasappa Deshmukh. Therefore, a Special Suit in No.47 of 1946 was filed before the District Court at Bijapur. In the said case, on 12th December 1946, an Advocate viz. Sri K.S. Deshpande, was appointed as Receiver. As a Receiver, he had leased out the land in question in favour of the respondents 1 to 4 herein. Subsequently, in WA NO.200503 OF 2016 6 Miscellaneous Appeal No.300 of 1966, this Court permitted the said Receiver to sell the “chavarat” land of Kesapur Estate as per Execution No.224. It is stated that subsequently, Sri Laxminarayana Navad (Petitioner No.1) has purchased the said land on 17th December 1968 under a Registered Sale Deed and since then, is in possession and enjoyment of the said land. It was also contented that the tenancy rights were waived in MLT No.24 of 1966 and RPC No.2 of 1970. It was further contented that the respondent No.6, without properly considering the sale deed and also the revenue records, has granted occupancy rights and therefore, it was sought for quashing of occupancy rights. It was further stated in the writ petitions that statement of objections was filed wherein it was contented that Kasimsab Risaldar was a protected tenant and he was never dispossessed by the Receiver, and in fact, in Appeal No.154 of 1959 filed before the District Court, Bijapur, there was a settlement between the Tenant and the Receiver and the tenancy rights were continued and therefore, it was contended that they are still the tenants in occupancy of the said land. Further, it was urged that the Execution No.224 showing the lands which were permitted to be sold by the Receiver, has not been placed on record and therefore, there was no question of challenging the said sale deed and further entries in the revenue records. It WA NO.200503 OF 2016 7 was also urged that the Land Tribunal, after holding inspection, has granted the occupancy rights and hence there is no illegality or irregularity in granting the occupancy rights, and accordingly, it was sought for dismissal of writ petitions. 3. Sri Sreevatsa, learned Senior Counsel appearing on behalf of Sri R.S. Sidhapurkar for appellants, would submit that the order passed by the Learned Single Judge is totally against the records and admitted facts of the case. He submits that the Learned Single Judge has not properly considered the facts that the land in question has been sold by the Receiver appointed by the Court and order the passed in Miscellaneous Appeal No.300 of 1966 clearly stipulates that the lands mentioned in Execution No.224 are permitted to be sold. Though this fact was very much urged during the course of arguments, the learned Single Judge has not considered the same and had allowed Writ Petitions on the ground that the sale deed is not challenged by the appellants. Further, the learned Senior Counsel would submit that respondents 1 to 4 have no locus standi to challenge the order of the Land Tribunal, as the tenanted lands could not have been sold. That apart, it was also urged that the legal heirs of the deceased protected tenants continued to be the tenants of the land in WA NO.200503 OF 2016 8 question and without following the due procedure prescribed under Section 25 and other provisions of Karnataka Land Reforms Act, 1961, their names could not have been deleted from the revenue records and therefore, the sale deed and the subsequent entries made in favour of respondents 1 to 4, are illegal and does not affect the tenancy rights of the appellants. It is the further submission of the learned Senior Counsel that the alleged waiver/surrender is not proved by respondents 1 to 4 as asserted by them. This aspect of the matter has also not been properly considered by the Learned Single Judge while allowing Writ Petitions. It is the further submission of the learned Senior Counsel that the Learned Single Judge has not properly appreciated the fact that the appellants are in possession and enjoyment of the land in question. Though a plea of waiver/surrender is set up, the same has not been proved in accordance with law. Therefore, the entire reliance placed by the Learned Single Judge on the alleged waiver/surrender is not correct. Learned Senior Counsel would further submit that, this Court, in several cases, has ruled that unless the surrender is valid and is in accordance with law and procedure as contemplated under relevant law, such a surrender/waver is not competent and the burden of proving the same is on the respondents, which they have failed to WA NO.200503 OF 2016 9 prove. Hence he submits that the said aspect could not have been made sole basis for allowing the writ petitions. 3.1. It is the submission of the learned Senior Counsel that the appellants have filed an application in IA.I of 2019, under Order VI Rule 17 of the Code of Civil Procedure read with Section 4 of High Court Act, 1961 and High Court Writ Proceedings Rules and Section 151 of the Code of Civil Procedure, seeking permission to amend the memorandum of writ appeal and to insert the proposed amendment as to provisions of Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 and the legal effect and consequence of the deemed purchase by Kasimsab Risaldar and his becoming the owner of the lands in question by operation of law without any positive act required of him in this regard. It being the settled law that there can be no estoppel against statute, the actions of the Court Receiver and the Land Tribunal thereafter and all actions taken by Kasimsab Risaldar in ignorance of his statutorily conferred right, is of no consequence. The learned Single Judge could not have ordered re-delivery of possession and the said order is liable to be set aside and possession restored to the applicants. On all these grounds, he sought to allow the application IA.I of 2019. WA NO.200503 OF 2016 10 4. On the other hand, Sri Ameet Kumar Deshpande, learned Senior Counsel appearing on behalf of Sri Sachin M. Mahajan, counsel for respondents 1 to 4, would submit that as per the admitted case of respondents, the respondents were claiming to be tenants of the land in question and having paid “Lavani” only between the period 26th June 1946 till 1963-64, therefore, admittedly did not continue to be tenants in possession of the said land in question up to the cut-off date of 01st March 1974 when Section 48A was inserted in the Karnataka Land Reforms Act, 1961 and the tenants in possession on the said cut-off date on 01st March 1974, were given a right to surrender such land in favour of State of Karnataka and to get back the land recorded in their names by adopting the procedure under Section 45 of the Act. The learned Senior Counsel further urged that the respondents are estopped from seeking reopening and raising the claim of their occupation and tenancy rights in view of the waiver of the right by their predecessor, viz. Kasimsab Ladlesa Risaldar in MLT No.24 of 1966 and RPC No.2 of 1970, in which a Memo was filed by them that a consideration of Rs.2,000/- was paid to the applicants, viz. the legal heirs of late Kasimsab, and it is clearly admitted that, their father Kasimsab was cultivating the disputed land as a tenant through the Receiver before the WA NO.200503 OF 2016 11 Receiver took over the charge of management of estate, and Kasimsab was not cultivating the said disputed land as a tenant and since Kasimsab failed to pay “Lavani” regularly, the Receiver has taken over the disputed land from Kasimsab and legally allotted the said land to the respondent No.2- Laxminarayana Navad as a tenant and later the said land in question was sold to Sri Laxminarayana Sivaram Navad, i.e. the respondent No.1 herein. He further submits that the appellants viz. legal representatives of Kasimsab, have admitted in paragraph 4 in the Memo filed before the Munsiff Court that the Application of applicants was not legally valid under the Mysore Land Reforms Act and they are not tenants of the said land and in order to bring finality to the case, as per the request of the applicants themselves, Rs.2,000/- has been paid to them, and therefore, the said application itself is withdrawn. Accordingly, the consent terms were drawn by the said Court in RPC No.2 of 1970 on 20th February 1971 vide entry No.1417 dated 14th April 1972 stipulating that, since the legal heirs of Kasimsab had relinquished their rights over the land in Survey No.76 in the Court on 28th February 1971, their rights were so deleted vide RTS No.8 of 1972 dated 01st April 1972. It is further submitted that if the facts of waiver of their rights by the predecessors of the present respondents was to WA NO.200503 OF 2016 12 be challenged by them, that could only be done by taking appropriate proceedings before the same Tribunal. Without laying a proper challenge to the sale deed executed in favour of the respondents which having duly authorised by the competent Court of Law, the appellants cannot be declared as occupants of the suit land in Survey No.76 of Muddebihal, Vijayapur District. 4.1. Further, it is submitted by the learned Senior Counsel that the Learned Single Judge having properly appreciated the material on record in accordance with law and facts, had allowed the writ petitions and absolutely there are no grounds to interfere with the impugned order passed by the Learned Single Judge. On all these grounds, it was sought for dismissal of the appeal. 5. It is further submitted that since the appellants have failed to prove that they were tenants of the land in question as on 01st March 1974, the question of vesting the land to the Government does not arise under Section 44 of Karnataka Land Reforms Act, 1961. Under the said set of circumstances, the proposed amendment is not at all required to adjudicate the matter in dispute and hence sought for rejection of application WA NO.200503 OF 2016 13 in IA.1 of 2019 filed under Order VI Rule 17 read with Section 151 of Code of Civil Procedure. 6. Sri Mallikarjun Sahukar, learned Additional Government Advocate, supports the order of the Learned Single Judge and submits that the same does not call for interference. 7. We have given our anxious consideration to the submissions, advanced by the learned Senior Counsels appearing on behalf of the parties and have examined the material placed before us. 8. The land in question is Survey No.76, measuring 17 acre 19 guntas situate at Muddebihal Taluk, Vijayapura District. Originally, deceased Channabasappa Deshmukh was the owner of the land in question who leased the same to Kasimsab the grandfather of appellants 2 to 6 herein. Accordingly, Kasimsab was cultivating the land in question as a tenant. The name of Chaandma w/o Kasimsab was shown in the revenue records for the year 1944–45. The then Mamledar, passed an order on 22nd December 1941, directing to enter the name of Kasimsab as tenant in the revenue records. Accordingly, Mutation Entry No.604 came to be entered and certified. Though the name of WA NO.200503 OF 2016 14 the deceased Kasimsab came to be shown for the year 1946– 47, but his name was mutated as Mutation Entry No.735 dated 26th June 1952 as an ordinary tenant and they continued to be in possession and occupation of the land in question from 1946 to 1963–1964. 9. On coming into force Act No.1 of 1974, the children of deceased Murtuzasa filed Form No.7 before the Tribunal for grant of occupancy rights. The said application was registered in file No.LRM/72/SR–9+15 on the file of the Tribunal. The Tribunal rejected the application. Therefore, Dastagirsab and others filed Writ Petition No.8044 of 1983, and the petition was allowed and matter was remanded to the Land Tribunal for holding fresh enquiry in compliance with the requirement of Rule 70 of Karnataka Land Revenue Rules, 1974 as the respondent No.1 was not tendered for cross-examination. After recording the evidence, the Tribunal has rejected the application filed on 02nd September 1985. This order was again challenged by the appellants in Writ Petition No.29820 of 1987. The said writ petition was allowed vide order dated 26th May 1999 and the order dated 02nd September 1985 passed by the Tribunal impugned therein, was quashed and the case was remitted to the land Tribunal for disposing of the applications WA NO.200503 OF 2016 15 filed by Dastagirsab, Murtuzasab and Abdulsab afresh after bringing the legal representatives of Dasatagirsab and Murtuzasab on record, and after issuing notices to all the concerned, and after conducting the enquiry in accordance with Law, so also, after considering the entries in the revenue records. After remand, enquiry was held by the Tribunal, and after considering the records of the case, the Land Tribunal granted occupancy rights to the tenants on 23rd November 2012. The said grant of occupancy right was challenged by respondents 1 to 4 in Writ Petitions No.100497–500 of 2013. Writ Petitions came to be allowed by the Learned Single Judge vide order dated 30th August, 2016. It is observed by the Learned Single Judge that the Tribunal has completely missed to notice the effect of the earlier proceedings before the Land Tribunal, Muddebihal, held in MLT No.24 of 1966 and RPC No.2 of 1970 in which the predecessor of the present appellants have clearly waived the tenancy upon the compromise entered into with the Receiver viz. K.S. Deshpande of the said entire chunk of land known as Deshmukh Family Estate and Memo (purasis) was filed by them having accepted the consideration of Rs.2,000/- forfeiting their rights whatsoever in the said land; and on the basis of that alone, the compromise decree was passed by the Land Tribunal in RPC No.2 of 1970 on 20th WA NO.200503 OF 2016 16 February 1971. That compromise decree, in fact, clinches the issue and fait accompli of the present respondents who were estopped from raising a dispute and stake their claim. Their predecessors had already waived their rights of tenancy. 10. Further, a perusal of Mutation Entry No.1417 which is produced as Annexure-K to this appeal, reads as under: "vÁjÃRÄ 14-4-1972 E¹éUÉ PÀļÀzÀ ºÀPÀÄÌ PÀrä: ¨ÁdÆPÉÌ §gÉzÀ ¸À.£ÀA. 76 EzÀPÉÌ £ÀªÀÄÆzÀ EzÀÝ ¸Á.PÀÄ. PÁ²ÃªÀĸÁ vÀA. ¯ÁqÉèøÁ EªÀgÀÄ zÁªÁ d«ÄãÀ ¸ÀAvÉÆõÀ¢AzÀ ¸ÁUÀ ªÀiÁqÀĪÀÅzÀÄ ©lÖ §UÉÎ PÉÆÃnð£À°è, PÁ²ÃªÀĸÁ FvÀ£À ªÁgÀ¸ÀÄzÁgÀgÀÄ PÀ§Æ° ªÀiÁrzÀÝjAzÀ (¢£ÁAPÀ: 20-02-1971) ºÀPÀÄÌ PÀrªÉÄ ªÀiÁrvÀÄ." 11. This Mutation Order has not been challenged by the appellants in accordance with law. The appellants have not placed any material before the Tribunal that they were cultivating the land as tenants as on 01st March 1974. Accordingly, the appellants have failed to prove that they were cultivating the lands as tenants. Even the Tribunal ignored the Mutation Entry No.1417 and had come to the conclusion that the land in question was tenanted land as on 01st March 1974, which is not correct and is contrary to law and facts of the case. The Learned Single Judge has properly appreciated the WA NO.200503 OF 2016 17 material on record in accordance with law and facts. We do not find any infirmity in the order passed by the learned Single Judge. 12. Since the applicants have failed to establish tenancy rights as on 01st March 1974, consideration of Section 32 of the Maharashtra Tenancy and Agricultural Lands Act, does not arise. Accordingly, IA.I of 2019 filed by the appellants under Order VI Rule 17 of the Code of Civil Procedure does not survive consideration. 13. In the result, we proceed to pass the following: ORDER The appeal fails and is accordingly dismissed. Pending applications, if any, stand disposed of. Sd/- (R. DEVDAS) JUDGE Sd/- (G. BASAVARAJA) JUDGE lnn