Abdul Khader (D) By Lrs vs Tarabai & Ors

Abdul Khader (D) by L.Rs. ......Appellant(s)

Versus

Tarabai and others ......Respondents

J U D G M E N T

G.S. Singhvi, J.

1. This appeal is directed against the judgment of the Division Bench of

the Karnataka High Court whereby Writ Appeal No. 963 of 2000 filed by

the appellants against the order of the learned Single Judge, who declined to

interfere with the order passed by Land Tribunal, Gulbarga (for short, "the

Tribunal") for grant of occupancy rights to the respondents was dismissed.

2. The predecessor of Abdul Khader, who is now represented by his

legal representatives, are said to be Sajjada of the Darga of Hazarath Sheik

Sirajuddin Junnedi of Shaik, Roza Gulbarga. Land comprised in survey

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Nos.5, 6 and 7 situated at village Badepur, Taluk Gulbarga is said to be

Service Inam Land under the Darga. Abdul Khader leased out the land to

Basavannappa (husband of respondent No.1 - Tarabai) in 1957 for a period

of five years at an annual rent of Rs.500/- and on that basis, the latter started

cultivating the land.

3. Basavannappa gave interest free loan of Rs.6,000/- to Abdul Khader

and also supplied him foodgrains worth Rs.3,500/-. After some time, he

filed Suit No.35/1/1959-60 in the Court of Subordinate Judge at Gulbarga

for recovery of the loan etc. During the pendency of the suit, the parties

agreed to refer the matter for arbitration. After hearing the parties, the

Arbitrators passed award dated 15.10.1959. They took cognizance of the

fact that the land comprised in survey Nos.5, 6 and 7 was already leased out

to Basavannappa for five years and declared that the plaintiff will have to

recover the amount from the defendant by taking the land on lease for a

period of 19 years after expiry of five years term. Abdul Khader filed

objections against the award but the same were not entertained by the

Subordinate Judge, who decreed the suit on 29.10.1959 in terms of the

arbitration award.

3 4. After coming into force of the Karnataka Certain Inams Abolition

Act, 1977 (for short, "the 1977 Act"), Basavannappa filed an application

under Section 5(1) of that Act for grant of occupancy rights by asserting that

he was in cultivating possession of land comprised in survey Nos.5, 6 and 7

since 1957 as a tenant. Respondent No.2 - Shivapal Singh, who is also

represented by his legal representatives, filed similar application for grant of

occupancy rights in respect of 1 acre 12 guntas land comprised in survey

No.6. Abdul Khader too claimed occupancy rights over the land in dispute

and submitted form No.7.

5. By an order dated 27.6.1977, the majority of the Tribunal allowed the

applications of Basavannappa and Shivapal Singh and held that

Basavannappa is entitled to occupancy rights in respect of land comprised in

survey Nos.5, 6 and 7 excluding 1 acre 12 guntas. Shivapal Singh was

declared as an occupancy tenant in respect of 1 acre 12 guntas land

comprised in survey No.6. However, the application of Abdul Khader was

rejected on the ground that he had not cultivated the land as a tenant.

6. Abdul Khader challenged the order of the Tribunal in Writ Petition

No.8584 of 1977. Basvannappa also filed Writ Petition No.8583 of 1977

questioning the grant of occupancy rights to Shivapal Singh. During the

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pendency of the writ petitions, Basavannappa died and his legal

representatives including respondent No.1 were brought on record and their

names were shown in the cause title of the order passed by the learned

Single Judge. Both the writ petitions were allowed by the learned Single

Judge vide order dated 26.11.1984 on the ground that the Tribunal had

decided the applications without recording evidence and remitted the matter

for fresh disposal of the applications filed by the parties.

7. After remand, respondent No.1 submitted an application in form No.1.

Abdul Khader filed an application for re-grant of the land. The Tribunal

recorded the statements of all the applicants. After considering the evidence

of the parties and the written submissions filed on their behalf, the Tribunal

passed order dated 6.10.1987 and declared that the respondents have

acquired occupancy rights in respect of the land which was in their

cultivating possession. The relevant portions of order dated 6.10.1987 are

extracted below:

"...............Even though the landlord is not cultivating the

lands, he has requested to dismiss the applications of the other

applicants for granting occupancy rights. He has sought to

dismiss their application on the ground that he had mortgaged

the land to the applicants and not leased the same to them. As

he has not produced any documents in support of his claim, his

request was rejected. Moreover, he also sought for rejecting the

applications of the applicants on the ground that envisaged in

Section 79A of the Karnataka Land Reforms Act, as they are

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not qualified for re-grant of the lands. As he has failed to

produce any document to support his contention, it was decided

to reject his contention. The applicant has stated that they are

in cultivation of the lands as per the decree of the Munsiff

Court. In the decree it is stated that the land is leased. Hence,

the contention of the landlord is not liable for consideration on

any points of view and hence his application is rejected and so

unanimously resolved by the members of the Land Tribunal.

As per the statement of the Rajshekar S/o Basawannappa,

he is the tenant of Sy.No.5, 6 and 7 and Shivapalsingh is the

tenant in respect of 1 acre 12 guntas in Sy.No.6.

As the landlord and tenants, have filed the application in

Form No.1 and in Form No.7, it is decided to club them

together and to take decision on Form no.1.

Perused the pahani and it is seen that applicants are the

tenants of the lands prior to 1973-74 and thereafter. As per

inam extract the land is inam land.

In view of the foregoing reasons and also as per Section 5

of the Karnataka Certain Inams Abolition Act, Sri. B.M.

Junnedi, the son of the applicant Shri Abdul Khadar Junnedi is

not entitled to be granted occupancy rights in respect of land

Sy.Nos.5, 6 and 7 of Badepur village. The Land Tribunal

unanimously decided to grant occupancy rights in favour of

Smt. Tarabai W/o Basawannappa in respect of Sy.No.5

measuring 11 acres 10 guntas, Sy.No.6 measuring 7 acres 7

guntas and Sy.No.7 measuring 8 acres 22 guntas and to

Shivapalsingh S/o Jeshwanthsingh in respect of 1 acre 12

guntas in Sy.No.6 occupancy rights. "

8. Abdul Khader challenged the order of the Tribunal by filing an appeal

before the Land Reforms Appellate Authority, Gulbarga. After abolition of

the Appellate Authority in the year 1990, Abdul Khader filed an application

before the High Court with the prayer that the record of appeal bearing

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No.LRA/INA/No.218/87 be summoned from the Appellate Authority and

registered as a writ petition. Paragraph 1 of that application reads as under:

"The petitioner late Abdul Khader and Respondents

-1 and 2 had filed Application in Form No.l,

numbered as LRA/INM/521/81-82 to Respondent

No.4, for grant of occupancy rights of Sy.Nos.5,6 &

7 which were Inam land under Karnataka Certain

Inam Abolition Act 1977 of Badepur village.

Respondent No.4, by its order dated 6-10-87,

rejected the Application of Abdul Khader who had

occupancy Applications of Respondents- 2 and 3 as

stated in its order."

9. The High Court allowed the application and registered the appeal as

Writ Petition No. 19622/1991. The plea of Abdul Khader that respondent

Nos. 1 and 2 could not have been granted occupancy rights because they

were holding the land as mortgagees was rejected by the learned Single

Judge by observing that no evidence has been produced to prove that the

writ petitioner had mortgaged the land to respondent Nos. 1 and 2. The

learned Single Judge then referred to the decree passed by Subordinate

Judge, Gulbarga and held that the finding recorded by the Tribunal that

respondent No. 1 was cultivating the land from 1957 does not require

interference.

7 10. The legal representatives of Abdul Khader unsuccessfully challenged

the order of the learned Single Judge inasmuch as Writ Appeal No.963 of

2000 filed by them was dismissed by the Division Bench of the High Court

along with Writ Appeal No. 972 of 2000 filed by another legal heir of Abdul

Khader.

11. Shri Shekhar Naphade, learned senior counsel appearing for the

appellants argued that the impugned judgment is liable to be set aside

because the decision of the Tribunal to grant occupancy rights to the

respondents is based on total misreading of the arbitration award. Learned

senior counsel submitted that Abdul Khader had created a mortgage in

favour of Basvannappa and, therefore, he cannot be said to have been

cultivating the land as a tenant as on 1.3.1974, which is sine qua non for

grant of occupancy rights under Section 48-A read with Section 45 of the

Karnataka Land Reforms Act, 1961 (for short, `the 1961 Act'). Shri

Naphade then referred to the prohibition contained in Section 79-A of the

1961 Act against the transfer of agricultural land and argued that the

application filed by Basavannappa for grant of occupancy rights was not

maintainable and was liable to be dismissed because he was a money lender

having an annual income of more than Rs.50,000/- from sources other than

agricultural lands. Learned senior counsel relied upon the provisions

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contained in the Hyderabad Abolition of Inams Act, 1955 (for short, "the

Hyderabad Act, 1955") and the Hyderabad Tenancy and Agricultural Lands

Act, 1950 and argued that the occupancy rights could not have been

conferred upon the respondents in respect of Service Inam Lands.

12. Ms. Kiran Suri, learned counsel for respondent No.1 supported the

impugned judgment and argued that the Tribunal did not commit any error

by granting occupancy right to respondent No. 1 because by virtue of

Section 4 of the 1977 Act, the tenure of all Inams stood abolished. Learned

counsel further argued that neither the Tribunal nor the High Court

misconstrued/misinterpreted the arbitration award in terms of which

Basavannappa continued to cultivate the land which had already been leased

out to him by Abdul Khader. Ms. Suri pointed out that Abdul Khader did

not challenge the decree passed by Subordinate Judge, Gulbarga in the suit

filed by Basvannappa and argued that his legal representatives are not

entitled to indirectly question the arbitration award, which recognised the

fact that Basvannappa was already in possession of the land by virtue of

lease granted by Abdul Khader. Learned counsel also pointed out that

Basvannappa had filed application under Section 5 of the 1977 Act read with

Section 48-A of the 1961 Act and Abdul Khader had filed application under

Section 5(3) of the 1977 Act and argued that the Tribunal did not commit

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any illegality by recognizing that respondent No. 1 had become occupancy

tenant because she and her husband were cultivating the land as tenant since

1957 and were doing the same activity on the cut off date i.e. 1.3.1974. In

the end, Ms. Suri argued that the Hyderabad Tenancy and Agricultural

Lands Act, 1950 cannot be invoked by the appellants because the same

stood repealed by virtue of Section 142(1) of the 1961 Act.

13. We have considered the respective arguments. At the outset, we

consider it necessary to point out that the Hyderabad Tenancy and

Agricultural Lands Act, 1950 upon which reliance was placed by Shri

Naphade for raising an argument that occupancy rights could not have been

conferred upon the respondents in respect of Inam lands was repealed by

Section 142(1) of the 1961 Act, which reads thus:

"142. Repeal and savings.- (1) The enactments specified in

Schedule III to this Act, and any other provision of law

corresponding to the provisions of this Act, are hereby

repealed:

Provided that save as otherwise provided in this Act,

such repeal shall not affect,-

(a) the previous operation of the said enactments or

provisions of law or anything duly done or

suffered thereunder; or

(b) any right, privilege, obligation or liability

acquired, accrued or incurred under the said

enactments or provisions of law; or

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(c) any penalty, forfeiture or punishment incurred in

respect of any offence committed against the said

enactments or provisions of law;

(d) any investigation, legal proceeding or remedy in

respect of such right, privilege, obligation,

liability, penalty, forfeiture or punishment as

aforesaid;

and any such investigation, legal proceeding or remedy may be

instituted, continued or enforced, and any such penalty,

forfeiture or punishment may be imposed as if this Act had not

been passed:

Provided further that any reference in any enactment or

other law or in any instrument to any provision of any of the

repealed enactments or provisions of law shall, unless a

different intention appears, be construed as a reference to the

corresponding provision of this Act."

The Hyderabad Act, 1955 finds mention at serial No.2 in Schedule III

appended to the 1961 Act.

14. The argument of Shri Naphade that occupancy rights could not have

been conferred upon Basavannappa/respondent No. 1 because of the

prohibition contained in Section 79-A of the 1961 Act is being mentioned

only to be rejected because Abdul Khader did not produce any evidence

before the Tribunal or the learned Single Judge of the High Court to prove

that Basavannappa was a money lender and his income was in excess of the

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limit prescribed under Section 79-A. The Division Bench of the High Court

negatived this argument by recording the following observations:

"The appellants' learned Advocate vehemently submitted that

this is a case in which a fresh or further enquiry must be held

for purposes of determining the exact nature of the transaction,

for purposes of re-evaluating the revenue records by more

importantly, for purpose of deciding everything including the

applicability of Sec.79A of the Act. It was submitted before us

that the respondent was a wealthy businessman even at the

relevant point of time and that was really the reason how the

appellants got indebted to him and it was contended before us

that was the principal ground on which the bar under Sec.79A

was pleaded before the Tribunal. The appellants learned

Advocate pointed out to us from the order passed by the

Tribunal that this plea had in fact been canvassed but the

respondent's learned Advocate was quick to point out to us that

even though the reference was made to this contention, that the

appellants had not substantiated it. We note two things, the first

being that if the appellants pleaded the bar on the ground that

the applicant was a wealthy businessman and that his income

exceeded the limit prescribed by the section, then the onus of

establishing this was on the party who pleaded it viz., the

appellants. The Tribunal has recorded in no uncertain terms

that this was never done. Secondly, this plea was never taken

up at the appellate stage. It was not even contended or argued

when the writ petition was heard by the learned Single Judge

and at this late point of time if the contention is raised that the

entire enquiry should be re-opened for purposes of ascertaining

whether the bar under Sec.79A would be applicable, our answer

to the same is that it would not be legally permissible. The

Court needs to take into account certain factors that emerge

from the doctrine of finality, the first of them being the fact that

the stage for holding that investigation had elapsed, once the

Tribunal had given its decision and assuming without accepting

that the appellant still had enough material in support of that

plea under Sec.79A, the last stage in our considered view, for

agitating this would have been when the writ petition was filed

and when it was taken for hearing. If this has not happened,

there can be no question at this late stage for re-opening that

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issue. This Court will never be technical, but what this Court

has to take cognizance of is the sheer impossibility at this point

of time of proving the income of an opposite party as of the

year March 1974 which would be a total impossibility as far as

the appellants are concerned. Secondly, when with regard to

the income limits etc., several amendments have been made to

the law over the years and a Division Bench of this Court has

taken a view that these amendments would be retrospectively

applicable. The income limits have therefore been reasonable

point of view. We see no ground on which any useful purpose

would be served by re-opening that issue."

15. We are in complete agreement with the High Court that having failed

to adduce any evidence before the Tribunal, which could enable it to invoke

the prohibition contained in Section 79-A of the 1961 Act and having failed

to raise this plea before the learned Single Judge, the appellants were not

entitled to resurrect the same before the Division Bench. In any case, in the

absence of any tangible evidence, the Tribunal or for that reason the High

Court could not have denied occupancy rights to Basavannappa or his

widow by relying upon Section 79-A of the 1961 Act.

16. The argument that Basavannappa was not entitled to occupancy rights

in respect of Service Inam Lands, which were governed by the Hyderabad

Act, 1955 merits rejection because no such plea was raised either before the

Tribunal or the High Court. We have carefully scrutinized the pleadings of

the writ petition filed by Abdul Khader before the High Court and the writ

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appeals filed by his legal representatives and find that neither Abdul Khader

nor the appellants challenged the order of the Tribunal on the ground that

occupancy rights cannot be claimed in respect of the Service Inam Lands,

which are governed by the Hyderabad Act, 1955. The counsel, who

appeared on behalf of the appellants and their predecessor before the High

Court, did not raise any such argument. Therefore, there is no tangible

justification to allow the appellants to raise a new plea for the first time, the

determination of which would require detailed investigation into the issue of

facts.

17. The concurrent finding recorded by the Tribunal and the High Court

that Basavannappa was in possession of the land in question since 1957 as a

lessee/tenant is amply supported by the finding recorded by the Arbitrators

that Abdul Khader had given the land on lease for a period of five years at a

rent of Rs.500/- per annum. If this was not so, there was no reason for the

Arbitrators to say that the plaintiff, i.e. Basavannappa shall have to recover

the amount by continuing to occupy the land for 19 years after expiry of the

tenure of lease.

18. Before concluding, we may mention that the appellants have not

denied one of the foundational facts, namely, that their predecessor Abdul

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Khader had initially filed an application for grant of occupancy right and

after remand, he had applied for regrant of the land in question under

Section 5(3) of the 1977 Act. This shows that Abdul Khader knew that the

right/interest flowing from Inam land stood abolished by virtue of Section 4

of that Act. Therefore, it is futile for the appellants to contend that the nature

of the land continued to be Service Inam and the Tribunal did not have the

jurisdiction to entertain the applications filed by the respondents for grant of

occupancy rights.

19. In the result, the appeal is dismissed. The parties are left to bear their

own costs.

.......................

...................J.

[G.S. Singhvi]

...........................................J.

[K.S. Panicker Radhakrishnan]

New Delhi

May 2, 2011.