- 1 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MRS JUSTICE M.G.UMA WRIT PETITION NO. 66150 OF 2011 (LR-) BETWEEN: SHRI. GURUNATH S/O. SHRIPAD JOSHI, SINCE DECEASED BY HIS LR.S, 1. SMT. SARASWATI W/O. GURUNATH JOSHI, AGE: 52 YEARS, OCC: AGRICULTURE, and HOUSEHOLD, R/O: MUNNOLLI VILLAGE, TQ: SAUNDATTI, DIST: BELGAUM. 2. KUMAR SHISHIR S/O. GURUNATH JOSHI, AGE: 20 YEARS, OCC: STUDENT, R/O: MUNNOLLI VILLAGE, TQ: SAUNDATTI, DIST: BELGAUM. 3. KUMARI. VAISHNAVI D/O. GURUNATH JOSHI, AGE: 16 YEARS, OCC: STUDENT, R/O: MUNNOLLI VILLAGE, TQ: SAVANDATTI, DIST: BELGAUM. REPRESENTED BY HER NATURAL GUARDIAN MOTHER SMT. SARASWATI W/O. GURUNATH JOSHI, AGE: 52 YEARS, OCC: AGRICULTURE and HOUSEHOLD, R/O: MUNNOLLI VILLAGE, Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD - 2 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 TQ: SAVANDATTI, DIST: BELGAUM. 4. SHRI. ANAND S/O. SHRIPAD JOSHI, AGE: 52 YEARS, OCC: AGRICULTURE, R/O: MUNNOLLI VILLAGE, TQ: SAUNDATTI, DIST: BELGAUM. 5. SHRI. RAVINDRA S/O. SHRIPAD JOSHI, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: MUNNOLLI VILLAGE, TQ: SAVANDATTI, DIST: BELGAUM. …PETITIONERS (BY SRI. SANGRAM S. KULKARNI, ADVOCATE) AND: 1. THE CHAIRMAN, LAND TRIBUNAL RAMADURG, RAMADURG, BELGAUM. 2. STATE OF KARNATAKA, REPRESENTED BY SECRETARY TO REVENUE DEPARTMENT, VIDHANA SOUDHA, BANGALORE. 3. SMT. SHANTAVVA W/O. BHIMAPPA HUBBALLI, AGE: 68 YEARS, OCC: NILL, R/O:HANAMSAGAR VILLAGE, CHUNCHANNOR POST, TQ: RAMADURG, DIST: BELGAUM. 4. MALLAPPA BHIMAPPA HUBBALLI, AGE: 36 YEARS, OCC: NILL, - 3 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 R/O: HANAMSAGAR VILLAGE, CHUNCHANNOR POST, TQ: RAMADURG, DIST: BELGAUM. 5. SHREESHAIL BHIMAPPA HUBBALI, AGE: 34 YEARS, OCC: NILL, R/O:HANAMSAGAR VILLAGE, CHUNCHANNOR POST, TQ: RAMADURG, DIST: BELGAUM. 6. SHRI. BASAVARAJ BHIMAPPA HUBBALLI, AGE: 32 YEARS, OCC: NIL, R/O:HANAMSAGAR VILLAGE, CHUNCHANNOR POST, TQ: RAMADURG, DIST: BELGAUM. …RESPONDENTS (BY SRI. T.HANUMAREDDY, AGA FOR R1 & R2; SRI. CHETAN MUNNOLI, ADVOCATE FOR R3 TO R6) ----- THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE THE WRIT OF CERTIORARI OR ANY OTHER WRIT QUASHING THE ORDER DATED 10.03.2011 IN KLR/CHUNCHNNUR/SR-36/10-11 PASSED BY THE LAND TRIBUNAL RAMADURG PRODUCED AT ANNEXURE - D. THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: - 4 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 CORAM: THE HON'BLE MRS JUSTICE M.G.UMA ORAL ORDER The petitioners being the legal representatives of the original owner have approached this Court seeking issuance of writ in the nature of Certiorari to quash the order dated 10.03.2011, passed by the Land Tribunal, Ramadurg produced as per Annexure-D, conferring occupancy right in favour of the tenants i.e., respondent Nos.3 to 6. 2. Heard Sri Sangram S.Kulkarni learned counsel for the petitioners, Sri T.Hanumareddy, learned Additional Government Advocate for respondent Nos.1 and 2 – State and Sri Chetan Munnoli, learned counsel for respondent Nos.3 to 6. Perused the materials on record. 3. Learned counsel for the petitioners contended that the land in Sy.No.129 measuring 9 acres 19 guntas, situated of Chunchannur village, Ramadurg taluk was owned by the original owner Gurunath Joshi. The land was - 5 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 leased in favour of Basappa Hubballi, who was cultivating the land. But the tenant surrendered the possession of the land in favour of the owner during 1957, under the provisions of Bombay Tenancy & Agricultural Land Act, 1948 (‘BTAL Act’ for short). The said Basappa died on 22.02.1961. In the meantime, the son of Basappa by name Bhimappa Hubballi started interfering with the possession of the owner. Therefore the owner had filed the suit in RCS.No.17/1963, seeking permanent injunction against Bhimappa. Even though the Trial Court dismissed the suit, the appeal in R.A.No.1649/1965 preferred by the owner, came to be allowed as per Judgment and decree dated 11.08.1969, and permanent injunction was granted against Bhimappa. The Appellate Court, categorically held that the owner is in possession and enjoyment of the property in question. 4. Learned counsel for the petitioners contends that even though, the defendant in the suit challenged the judgment passed in the regular appeal by preferring RSA - 6 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 No.20/1970, the same came to be dismissed by this Court, vide judgment dated 20.02.1973 with a clear observation that, Basappa and his son were not in possession of the land as on 01.03.1974. 5. Learned counsel contended that Bhimappa who is the defendant in the suit, filed Form No.7 during 1976 on behalf of his father, contending that his father is hospitalized. But, by that time Basappa had already died, and therefore, Form No.7 was filed in the name of the dead person. However, the Land Tribunal conferred occupancy right in favour of Bhimappa. The owner preferred W.P.No.13493/1978 which came to be allowed and the matter was remanded back to the Land Tribunal. The Land Tribunal after re-enquiry rejected Form No.7. The tenant preferred W.P.No.6151/1982, which was transferred to the Appellate Authority, which again came back to the High Court and was re-numbered as W.P.No.40282/1993. The said writ petition came to be dismissed, by confirming the order of the Land Tribunal - 7 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 rejecting Form No.7. The tenant has preferred appeal in W.A.No.887/2001, but the said appeal came to be allowed vide judgment dated 27.03.2004, remanding the matter once again to the Land Tribunal. 6. After remand of the matter, the Land Tribunal once again held enquiry and passed the impugned order granting occupancy right in favour of the private respondents, which is challenged by the petitioners before this Court. 7. Learned counsel for the petitioners contends that the application filed by Bhimappa on behalf of his father Basappa is dated 30.06.1976. But Basappa had died on 22.02.1961, after surrendering the land during 1957. Under such circumstances Form No.7 filed by a dead person could not have been considered by the Land Tribunal. He also contended that the Land Tribunal has not considered surrender of the land by the tenant during 1957. The name of the tenant in the Record of Right was also deleted by effecting the mutation on the basis of the - 8 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 report of the Village Accountant. Even though the suit RCS.No.17/1963 filed by the owner for permanent injunction came to be dismissed, and the appeal preferred by the owner in R.A.No.1649/1965 came to be allowed. Against that RSA.No.20/1973 was filed by the tenant, which was also came to be dismissed by this Court, and it has already reached finality. 8. Learned counsel contended that even though in the writ appeal, the Division Bench of this Court observed that, the validity of the surrender of the land is to be enquired into, there is a separate procedure contemplated under Section 39 of the BTAL Act to hold an enquiry regarding the validity of the surrender. The Act provides for an application that could be filed by the tenant seeking resumption of the land under Section 32 of BTAL Act in his favour on certain conditions. No such application was filed by the tenant at any point of time and none of the provisions of BTAL Act, was invoked by him. Under such circumstances, the Land Tribunal could not have ventured - 9 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 to doubt the legality or otherwise of the surrender procedure and certification of ME.No.2978 based on the report of the Village Accountant to the effect that the land in question was in possession of the owner. He further submitted that, the Land Tribunal ignored the report of the Village Accountant to the effect that the owner himself is cultivating the land, but expressed doubt about the same, without any basis. The Land Tribunal goes to the extent of observing that the tenant continues to be in possession of the land, without any basis. 9. Learned counsel submitted that when the tenant has admittedly not challenged the surrender of the land, and they never sought for possession of the land, the Land Tribunal committed an error in passing the impugned order ignoring the order passed by the Mamledar/ Tahsildar, report of the Village Accountant and the judgment of the Civil Court granting permanent injunction in favour of the owner and against the tenant. - 10 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 10. Learned counsel submits that, even though learned counsel for private respondents placed reliance on the decision of the Apex Court in the case of Babu Parasu Kaikadi (Dead) by LRs. Vs. Babu (Dead) Through LRs.1, the facts and circumstance of the case are entirely different from the facts in the present case. In the case on hand, no proceedings were initiated under BTAL Act. But in the matter that was considered by the Hon’ble Apex Court, such proceedings were initiated. Under such circumstances, the decision in question was rendered infructuous. Therefore he prays for allowing writ petition. 11. Per contra, learned Additional Government Advocate for respondent Nos.1 and 2 – State, opposing the petition, submitted that, paragraph No.10 of the order passed by the Division Bench of this Court in W.A.No.887/2001, raises a serious doubt about surrender of the land by the tenant. The Division Bench of this Court made it very clear that, the endorsement of the Village 1 1(2004) 1 SCC 681 - 11 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 Accountant that the owner took over the possession of the land, even before the order of surrender, discloses that the possession was taken illegally, and such possession cannot be protected by the Civil Court goes a long way against the petitioners. When the said order was not challenged by the petitioners, they could not have challenged the order of the Land Tribunal, which has expressed similar opinion based on the materials that are placed before the Tribunal. Hence, he prays for dismissal of the petition. 12. Learned counsel for respondents No.3 to 6 submitted that, the father of the respondent No.3 – Bhimappa, was a protected tenant at an undisputed point of time. He continued to be the tenant till the appointed date i.e., on 01.03.1974. He never applied for surrender of the land. The application for surrender of the land, the order passed on the same and the certification of the possession of the landlord, were all on the basis of concocted documents created by the landlord, behind the - 12 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 back of the tenant. As the tenant was in possession of the land as on the appointed date, Form No.7 was filed. The Land Tribunal illegally rejected the claim of the tenant, which was challenged before this Court. The order of the learned Single Judge in the writ petition was challenged before the Division Bench of this Court. It is categorically held by the Division Bench that, the termination of the tenancy by the landlord is illegal. As per the records, the Mamlatdar directed the Talati to take over possession of the schedule land from the tenants, and handover the same to the owner. Admittedly, the Talati did not execute the direction of Mamaltdar, who endorsed that, by that time, the owner was already in possession of the land. Therefore, it was held that the surrender of the land by the tenant was not legal. On the other hand, the possession of the land continued with the tenant till 01.03.1974. When such observations are made by the Division Bench of this Court, the petitioners cannot contend otherwise. - 13 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 13. Learned counsel further contended that, the Division Bench of this Court in Writ Appeal directed the Land Tribunal, Ramdurg, to hold de novo enquiry in light of the observations made in the said judgment, and also in view of the judgment of the Hon’ble Apex Court in Ramachandra Keshav Adike (Dead) by LRs. Vs. Govind Joti Cilavare and Others2. Accordingly, the Land Tribunal held an enquiry and passed the impugned order. There is no illegality or perversity in the said order. Hence, he prays for dismissal of the writ petition. 14. The contention of the learned counsel for the contesting respondents is that, the tenant never applied for surrender of the land under the provisions of BTAL Act. Such an order permitting him to surrender was passed behind his back and the landlord concocted the documents. Admittedly, the landlord filed a suit in RCS.No.17/1963, seeking injunction against the tenant i.e., the petitioner and his father. At the first instance, the 2 AIR 1975 SC 915 - 14 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 defendant filed written statement categorically stating that the landlord had made the tenant to file an application seeking surrender of the land, ensuring that he will not be dispossessed. That means to say, that the tenant categorically admits filing of the application for surrender of the land, but it was on the assurance by the landlord that he will not be dispossessed. This contention taken in the written statement before the Civil Court goes a long way in considering the veracity of the defence taken by the tenant before this Court. It is also pertinent to note that, in the written statement filed before the Civil Court, a specific stand was taken by the tenant that, taking advantage of temporary injunction granted by the Tribunal, the landlord took forcible possession of the land. 15. Even though it is contended that the petitioners being the plaintiffs took forcible possession of the land when the suit was pending before the Civil Court, no attempt was made to seek restoration of possession, nor the tenants have challenged the order permitting - 15 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 surrender of the land, or the report of the Talati which was the basis for Tahsildar to certify that the possession was already handed over to the owner. If at all the contentions of the respondent tenant is to be accepted, he should have challenged the said order permitting surrender, and also the certification of possession by the landlord. Admittedly, no such steps were taken by the tenant. 16. It is also to be noted that, when a specific defence was taken before the Trial Court by the contesting respondents that, the landlord came in possession of the property illegally by taking advantage of the temporary injunction granted by the Civil Court, no-where it is contended that the possession illegally taken over by the landlord was ever restored in favour of the tenant. But, however, the tenant contends that he continued to be in possession over the property in question in spite of the order for surrender. Such inconsistency in the stand taken on behalf of the private respondents cannot be accepted even for a moment. - 16 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 17. It is pertinent to note that, even though the suit in RCS.No.17/1963 came to be dismissed by the trial Court, the plaintiffs therein had challenged the same by filing RA.No.1649/1965, which came to be allowed by the judgment and decree dated 11.08.1969, granting permanent injunction against the defendants. The said judgment was confirmed by this Court in RSA.No.20/1970. The judgment in the Second Appeal which is placed on record, discloses that this Court has reconsidered the evidence of plaintiff, examined as PW.1. It has also considered the evidence of PW3 who is an independent witness, who has deposed before the Court on 15.03.1965 that the landlord was in possession of the property since 5 to 6 years. It also observed that, nothing has been elicited during cross-examination of PW.3 to show that either he was interested in the plaintiffs, or had any hostility towards the defendants. Under such circumstances, the finding recorded by Co-ordinate Bench of this Court in a civil proceedings on the original side that the possession - 17 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 as on the date of suit was with the plaintiffs, does not call for interference. 18. It was again contended before the Co-ordinate Bench in the second appeal that under Section 29(2) of BTAL Act, the Mamlatdar has to record a finding that the land in question was surrendered to the landlord and the Civil Court has no jurisdiction to decide the question of the validity of the surrender of the land. Considering such submission, the Court has observed that the question of validity of possession owned by the plaintiffs therein was kept open. Strangely even after disposal of the Second Appeal on 20.02.1973. The contesting respondents, or their predecessor-in-interest had never challenged the order permitting surrender of the land and certification of the possession of the land with the landlord. The Proviso to Section 32(1)(B) of BTAL Act, provides that the tenant shall be entitled to restoration of the land on his undertaking to cultivate the land personally, if he is found to have been dispossessed as referred to therein. Even - 18 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 then, the tenant has not chosen to seek restoration of the land under any of the provisions either under BTAL Act, or under the provisions of KLR Act, which had come into effect from 1961. 19. Respondent No.3 who was the defendant before the Civil Court, made a candid admission in the pleading while filing his written statement that, the possession was with the owner and not with the tenant, who is already dispossessed. It is incumbent on the tenant to explain as to when he regained the possession of the property. When the tenant contends that he was made to file an application seeking surrender by assuring that he will not be dispossessed, at least, after coming to know about such an order, and also certification of the possession of the owner by the Tahsildar, he should have challenged the same. No such steps were taken by the tenant till today. 20. It is pertinent to note that the Land Tribunal subsequently conferred occupancy right in favour of Bhimappa, which was set aside in W.P.No.13493/1978, - 19 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 directing the Land Tribunal to re-enquire into the matter. After remand, the Land Tribunal rejected Form No.7, which was challenged by the tenant in W.P.No.6151/1982, renumbered as W.P.No.40282/1993. The said writ petition came to be dismissed confirming the order of the Land Tribunal, rejecting Form No.7. In the writ appeal No.887/2001, the order of the Land Tribunal and the order of the learned Single Judge in the writ petition were set aside, and the matter was once again remanded back to the Land Tribunal for fresh consideration. 21. Some observations were made by the Division Bench of this Court in the writ appeal. However, it is noticed that the landlords were not represented in the said writ appeal. Looking at the checkered history of the legal proceedings, where the matter was twice remanded to the Land Tribunal, several writ petitions came to be filed, the parties were also forced to approach the Land Tribunal Appellate Authority, no adverse inference could be drawn against the owner for not appearing before the Division - 20 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 Bench of this Court in W.A.No.887/2001. However, it appears that the Land Tribunal has granted occupancy right in favour of private respondents, based only on the judgment of the Division Bench of this Court. The order of the Land Tribunal which is impugned herein, is mainly on the basis of the spot inspection held by the members during 2011, and on enquiry with the neighboring land owners to the effect that who was the tenant and who was in possession of the land. At the cost of repetition, it is to be observed that, when the tenant has made a candid admission in the pleading while filing the written statement at the first instance in RCS.No.17/1963, categorically stating that the landlord took away the possession of the land by taking advantage of the temporary injunction, and when the tenant never contended that the possession was restored in his favour at any point of time, the tenant cannot be permitted to contend that he is in possession of the land throughout, which is apparently against his own admission in the pleadings. - 21 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 22. The other contention raised by the learned counsel for the private respondents is that, the landlord had not taken possession of the property in accordance with law as provided under BTAL Act. When admittedly there is an application seeking permission to surrender the land, and the said application was considered, and the tenant was permitted to surrender the land, he is at liberty to surrender voluntarily in favour of the landlord. It is not the contention of the tenant that after getting an order to surrender the land, he was forcibly dispossessed. On the other hand, as per the contention taken before the Civil Court, the tenant was dispossessed forcibly on the basis of temporary injunction obtained by the plaintiffs, and that, several steps were taken to seek restoration of possession. But on the other hand, the tenant strangely contended that he never parted with the possession at any point of time, and that he continued to be in possession till today. The same cannot be accepted in the light of the specific pleading before the Civil Court. - 22 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 23. On perusal of the revenue records, it is noticed that the name of the owner came to be entered, as he is in possession and cultivation of the land since 1957-77 and again from 1987. Only during 1977-78, the name of Basappa came to be entered in the revenue records. In view of all these documents and undisputed facts and circumstances, I am of the opinion that the contention taken by the tenant that, the order for surrendering the land passed against him and subsequent report by the Talati were concocted behind the back of the tenant, and the tenant continued to be in possession of the land till today, cannot be accepted. 24. The order, directing the tenant to surrender the land and certification of the possession with the landlord was never questioned before any forums till today. Hence, it has reached finality. Similarly, granting permanent injunction by the Civil Court has reached finality after dismissal of the second appeal by this Court. In view of all these facts and circumstances, I am of the opinion that the - 23 - NC: 2025:KHC-D:5408 WP No. 66150 of 2011 petitioner is entitled for the relief as sought for by quashing the order dated 10.03.2011, passed by the Land Tribunal as per Annexure-D. Accordingly, I proceed to pass the following: ORDER (i) The petition is allowed. (ii) The impugned order dated 10.03.2011 in KLR/Chunchnnur/SR-36/10-11 passed by the Land Tribunal, Ramadurg vide Annexure-D, is quashed. Sd/- (M.G.UMA) JUDGE EM – upto para 12 gab – para 13 to 15 MKM – para 16 to end CT:ANB List No.: 2 Sl No.: 3