- 1 - NC: 2025:KHC-D:5142 WP No. 4937 of 2007 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MRS JUSTICE M.G.UMA WRIT PETITION NO. 4937 OF 2007 (LR) BETWEEN: 1. MRS. DURESHAWAR JAHANSAHEB DUNDGE, W/O. JAHANSAHEB DUNDGE, SINCE DEAD BY HER LRS. 2. MISS. AZRA JAHANSAHEB DUNDGE, D/O. JAHANSAHEB DUNDGE, AGED ABOUT 42 YEARS 3. SHRI. HAZARATPASHA JAHANSAHEB DUNDGE, S/O. JAHANSAHEB DUNDGE SINCE DEAD BY HIS LRS. 3a. SMT. MEHEJABEEN W/O. HAZARATPASHA DUNDAGE AGED ABOUT 30 YEARS, 3b. MOHAMMAD NAQAI, S/O. HAZARATPASHA DUNDAGE, AGED ABOUT 25 YEARS, 3c. MUSTAQUAI S/O. HAZARATPASHA DUNDAGE, AGED ABOUT 22 YEARS, 3d. ARSHIYA D/O. HAZARATPASHA DUNDAGE, AGED ABOUT 18 YEARS. ALL ARE RESIDING AT A-6, 2ND FLOOR, SPRING APARTMENTS, MARATHA COLONY, TILAKAWADI, BELGAUM – 590006. …PETITIONERS (BY SMT. V. VIDYA, ADV. FOR SRI. K. RAGHAVENDRA RAO, ADV.) Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD - 2 - NC: 2025:KHC-D:5142 WP No. 4937 of 2007 AND: 1. STATE OF KARNATAKA, DEPARTMENT OF REVENUE, REPRESENTED BY ITS PRINCIPAL SECRETARY, M.S. BUILDING, VIDHANA VEEDI, BENGALURU - 560003. 2. THE LAND TRIBUNAL RAIBAG TALUK, RAIBAG BELGAUM DISTRICT - 591317 REPRESENTED BY ITS SECRETARY 3. BHUPAL MALLAPPA KADHU SINCE DEAD BY HIS LRS. 3a. MALINATH BHUPAL KADHU, S/O. LATE SRI. BHUPAL MALLAPPA KADHU, AGE NOT KNOWN TO THE PETITIONERS 3b. SHOBHA, D/O. LATE SRI. BHUPAL MALLAPPA KADHU, AGE NOT KNOWN TO THE PETITIONERS 3c. CHAYA D/O. LATE SRI. BHUPAL MALLAPPA KADHU, AGE NOT KNOWN TO THE PETITIONERS 3d. AKASHNI BHUPAL KADHU, D/O. LATE SRI. BHUPAL MALLAPPA KADHU, AGE NOT KNOWN TO THE PETITIONERS RESPONDENTS NO.3(A) TO 3(D) ARE R/O. PLOT NO.13, BHUPAL CO-OPERATIVE HOUSING SOCIETY, SANGLI DISTRICT, MAHARASHTRA STATE-416416. 4. SRIPAL MALLAPPA KADHU SINCE DEAD BY HIS LRS. 4a ABHAY KUMAR SRIPAL KADHU, S/O. LATE. SRI. SRIPAL MALLAPPA KADHU, AGE NOT KNOWN TO THE PETITIONERS - 3 - NC: 2025:KHC-D:5142 WP No. 4937 of 2007 4b. PUSHPA D/O. LATE. SRI. SRIPAL MALLAPPA KADHU, AGE NOT KNOWN TO THE PETITIONERS 4c. SUREKHA, D/O. LATE SRI. SRIPAL MALLAPPA KADHU, AGE NOT KNOWN TO THE PETITIONERS RESPONDENTS NO.4(A) TO 4(C) ARE R/O. KUDCHI VILLAGE, RAIBAG TALUK, BELAGAVI DISTRICT – 591311. 5. DHANAPAL MALLAPPA KADHU SINCE DEAD BY HIS LRS. 5a. SUSHILA DHANPAL KADDU, W/O. LATE SRI. DHANAPAL MALLAPPA KADDU, AGED ABOUT 78 YEARS 5b. MAHAVIR DHANAPAL KADDU, S/O. LATE SRI. DHANAPAL MALLAPPA KADDU, AGED ABOUT 52 YEARS 5c. VIDYA RAJENDRA ANAGOLKAR, D/O. LATE SRI. DHANAPAL MALLAPPA KADDU, AGED ABOUT 48 YEARS, RESPONDENTS NO.5(A) TO 5(C) ARE RESIDENTS OF UGAR KHURD, DESHPANDE PLOT, KAGAWAD TALUK, BELAGAVI DISTRICT – 591 316. 5d. ANANTANATI JAYAPAL BANAWANE, D/O. LATE SRI. DHANAPAL MALLAPPA KADHU, AGED ABOUT 42 YEARS, R/O. NASALAPUR, RAYABAG TALUK, BELAGAVI DISTRICT – 591317. 6. JAYAPAL MALLAPPA KADHU AGED ABOUT 60 YEARS 7. GUNAPAL MALLAPPA KADHU SINCE DEAD BY HIS LRS - 4 - NC: 2025:KHC-D:5142 WP No. 4937 of 2007 7a. SMT. BHARATI, W/O. LATE SRI. GUNAPAL MALLAPPA KADHU, AGE NOT KNOWN TO THE PETITIONERS 7b. SACHIN S/O. LATE SRI. GUNAPAL MALLAPPA KADHU, AGE NOT KNOWN TO THE PETITIONERS 7c. SUMIT, S/O. LATE SRI. GUNAPAL MALLAPPA KADHU, AGE NOT KNOWN TO THE PETITIONERS 7d. SARITA, D/O. LATE SRI. GUNAPAL MALLAPPA KADHU, AGE NOT KNOWN TO THE PETITIONERS RESPONDENTS NO.6 AND 7(A) TO 7(D) ARE R/O. KUDCHI VILLAGE, RAIBAG TALUK, BELGAUM DISTRICT – 591317. …RESPONDENTS (BY SRI. T.HANUMAREDDY, AGA FOR R1 & R2; SRI. B.S. KAMATE, ADVOCATE FOR R5(A) TO R5(D) & R6; R3, R4 & R7 – DECEASED; R3(A), R3(B), R3(C), R3(D)- H/S; R4(A), R4(B), R4(C) – H/S; R7(A), R7(B), R7(C), R7(D)- H/S) ------- THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION QUASHING THE IMPUGNED ORDER PASSED BY RESPONDENT NO.2 IN CASE NO.T.N.C.S.R NO.1184 KUDCHI, DATED 18.01.2007 FOUND AT ANNEXURE-C. ALLOW THIS WRIT PETITION WITH COSTS. - 5 - NC: 2025:KHC-D:5142 WP No. 4937 of 2007 THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: THE HON'BLE MRS JUSTICE M.G.UMA ORAL ORDER 1. The petitioners have approached this Court seeking issuance of writ in the nature of Certiorari to quash the impugned order dated 18.01.2007, passed by respondent No.2, in case No.T.N.C.S.R.No.1184 Kudchi, produced as per Annexure-C. 2. Heard Smt.V.Vidya, learned counsel appearing for the petitioners, Sri. T. Hanumareddy, learned AGA for respondents No.1 and 2 and Sri.B.S.Kamate, learned counsel appearing for the contesting respondents. Perused the materials on record. 3. It is the contention of the petitioners that, during 1942, one of the sharers, who was having only a fraction of share in the schedule property, had sold the entire property in favour of one Sri.Chintamani - 6 - NC: 2025:KHC-D:5142 WP No. 4937 of 2007 Biraj. He was not having right to alienate the property absolutely. Therefore, the suit in O.S.No.155/1955 came to be filed seeking partition and separate possession of the said property. The said suit came to be dismissed. However, the predecessor in interest of the petitioners preferred C.A.No.446/1965. The said appeal was allowed and the suit was decreed, holding that the sale deed of the year 1964 is not binding on the share of the plaintiffs therein, and declaring that the plaintiffs are entitled for 6 Annas share. 4. In the meantime, the predecessor in interest of respondents No.3 to 7 filed Form No.7 in respect of the very same property and the Land Tribunal granted occupancy right. The same has been challenged by the predecessor in interest of the petitioners by filing W.P.No.15775/1982. After formation of the Land Tribunal Appellate Authority, the writ petition was transferred to the Appellate Authority and on its - 7 - NC: 2025:KHC-D:5142 WP No. 4937 of 2007 abolition, it was again transferred to this Court. As per the order passed in the said writ petition, the matter was remanded to the Tribunal for reconsideration of Form No.7 filed by the predecessor in interest of contesting respondents. After such remand, the Tribunal passed the order as per Annexure-C dated 18.01.2007, granting occupancy right in favour of claimants. The same is challenged before this court. 5. Learned counsel for the petitioners submits that, when it is held by the Civil Court that the sale deed executed by one of the sharers of the schedule property is not binding on the other sharers and when the predecessor in interest of respondents No.3 to 7 could not have claimed right over the property under the registered sale deed, the Tribunal committed an error in conferring occupancy right, as the lease granted by one of the sharers is also not binding on the other sharers. Under such circumstances, the - 8 - NC: 2025:KHC-D:5142 WP No. 4937 of 2007 Land Tribunal could not have passed the order as per Annexure-C. Therefore the same is to be quashed. 6. Per contra, learned counsel Sri.B.S.Kamate, appearing for the contesting respondents, opposing the petition submitted that, even though the sale deed was held to be not binding and the Civil Court declared the shares of other sharers, there are ample records to show that the property was already leased out and the predecessor in interest of the contesting respondents were cultivating the same as tenants. Therefore, they have filed Form No.7 seeking confirmation of occupancy rights. The Tribunal, after remand of the matter by this Court, once again considered the materials on record and passed a detailed order on merits, which is based on the documents and the statements of the witnesses. Under such circumstances, there is no illegality or perversity in the order passed by the Land Tribunal. - 9 - NC: 2025:KHC-D:5142 WP No. 4937 of 2007 7. Learned counsel placed reliance on the decision of the Division Bench of this Court in Eregowda V. State of Karnataka1, short item No.14, to contend that, even if the sale deed is held to be not binding, since the contesting respondents continued to cultivate the land as tenants, confirmation of the occupancy rights cannot be challenged. Hence, he prays to dismiss the writ petition. 8. Learned High Court Government Pleader appearing for respondent Nos.1 and 2 supports the contention taken by the contesting respondents and prays for dismissal of the writ petition. 9. In Eregowda’s case (supra), relied on by the respondent, it is held as under: “If a person had been a tenant of the land even prior to his purchase of the land, the lease would be extinguished, if such purchase was valid, as there would be a merger of the interest of the landlord and 1 1980 (2) Kar.LJ. - 10 - NC: 2025:KHC-D:5142 WP No. 4937 of 2007 that of the tenant. If the sale was invalid for any reason, the purchaser's right as a tenant, if any, would not be extinguished and it would continue to subsist, even if there was a valid sale in favour of another.” 10. Learned counsel for the petitioners contended that, since the facts and circumstances could not be made out by reading the short note item, the same cannot be made applicable to the facts of the present case. She has placed reliance on the decision of the Hon’ble Apex Court in Union of India and Others Vs. Dhanwanti Devi and Others2 and Oriental Insurance Co. Ltd., Vs. Raj Kumari (Smt) and Others3, where the Hon’ble Apex Court held that in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which was to be decided. 2 (1996) 6 SCC 44 3 (2007) 12 SCC 768 - 11 - NC: 2025:KHC-D:5142 WP No. 4937 of 2007 11. In the short note item in Eregowda’s case (supra), the position of law is highlighted by the Division Bench of the Court, which cannot be disputed under any facts and circumstances. If a tenant purchases the land which he was cultivating, his right as a tenant merges in the larger interest, that is, as owner of the property under the sale deed. If for any reason, the sale deed is held to be not valid, it will result in denial of his title based on the sale deed. But definitely, it will not affect his right as a tenant. In other words, his right over the land as a tenant will not be extinguished on purchase of the property under the registered sale deed. When this proposition of law cannot be disputed under any facts and circumstances of the case, the contention of the learned counsel for the petitioners, that the decision is only a short note item and cannot be made applicable to the facts of the present case, is liable to be rejected. - 12 - NC: 2025:KHC-D:5142 WP No. 4937 of 2007 12. It is relevant to refer to the copy of the sale deed found in the original records, which was secured by the learned AGA from the Land Tribunal. Even as per the recitals in the sale deed, the purchaser was the tenant in respect of the land in question, who had agreed to purchase the property on payment of consideration. The claimant placed reliance on various documents, mainly the revenue records, which clinches the issue in proving the contention of the claimant. Admittedly, the revenue records, at an undisputed point of time, stood in the name of the tenant as the person in possession and cultivation of the land. The record of rights since from 1948 referred to the name of Mallappa, the father of respondents No.3 to 7, as tenant till 1964, when the sale deed came to be executed. The record of rights further disclose that, after execution of the sale deed, the name of the purchaser was shown as the owner of the property, on the basis of the sale deed. - 13 - NC: 2025:KHC-D:5142 WP No. 4937 of 2007 13. The fact that the purchaser of the property was a tenant in respect of the land since 1948 till 1964, and after the execution of the deed, his name was shown as the owner of the property, cannot be disputed. Thus it is clear that, since 1948, the father of respondents No.3 to 7 was cultivating the land as tenant, and he continued to be in possession and cultivation of the property till his death. Now, respondents No.3 to 7 are claiming right over the property as tenants. Simply because of the sale deed is held to be not binding on the shares of the petitioners in the civil suit instituted by them, the same has nothing to do with the tenancy rights of the claimant before the Land Tribunal. 14. On perusal of the impugned order passed by the Land Tribunal, it is found that, the Land Tribunal had taken into consideration the relevant documents and rightly proceeded to pass the impugned order. I do not find any illegality or perversity in the same. - 14 - NC: 2025:KHC-D:5142 WP No. 4937 of 2007 15. In view of the above, I am of the opinion that there is no merits in the petition filed by the petitioners and it is liable to be dismissed. 16. Accordingly, the petition is dismissed. Sd/- (M.G.UMA) JUDGE gab CT:ANB List No.: 2 Sl No.: 1