Maruthi Jaiwant Nakadi vs Eknath G.Navarekar (Dead) By Lrs.& Ors

Maruthi Jaiwant Nakadi ...

Appellant

VERSUS

Eknath G. Navarekar(Dead) By L.Rs. & Ors. ....

Respondents

JUDGMENT

TARUN CHATTERJEE, J.

1) This appeal by special leave arises from the

judgment and order dated 4th June, 1998 passed

by the High Court of Karnataka at Bangalore in

LRRP No. 1960 of 1989, whereby the High Court

had allowed the Petition filed by the

Landlords/Respondents, under Section 121A of the

Karnataka Land Reform Act,1961(in short `the Act')

setting aside the orders passed by the Additional

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Land Reforms Appellate Authority, Sirsi and the

Land Tribunal, Halyala.

2) The Tenant/Appellant in this appeal, claiming to be

the tenant of Block No. 20 measuring 11 acres and

17 guntas of Kumbarkoppa Village in Haliyal

Taluk (hereinafter referred to as `land in question'),

filed an application in Form No. 7 before the Land

Tribunal, Halyala claiming occupancy rights under

the Act. In his application it was alleged that he

was cultivating the land in question for many

years and was paying rent on crop share basis. It

was further alleged by the tenant/Appellant that

since the Landlords/Respondents never stayed in

the Kumbarkoppa Village, the question of

cultivating the land in question by them would not

arise at all. Accordingly, the appellant prayed for

an order of occupancy right in respect of the land

in question on the aforesaid allegations.

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3) The Landlords/Respondents denied the material

allegations made in the application filed by the

Tenant/Appellant, inter alia, alleging that the land

in question was never leased to anybody and was

cultivated through coolies, even the revenue

records from the year 1956 onwards showed the

names of the landlords themselves and the mode of

cultivation as No.2, i.e. through hired labourers.

Accordingly, Landlords/Respondents prayed for

rejection of the application filed by the appellant

claiming occupancy rights in respect of the land in

question.

4) By an order dated 6th of December,1998, the Land

Tribunal, Halyala allowed the application of the

tenant/Appellant holding that it was the appellant

who continued to cultivate the land in question

and therefore entitled to claim occupancy rights.

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5) Feeling aggrieved, the Landlords/Respondents filed

an appeal before the Appellate Authority, Sirsa

which dismissed the appeal of the Landlords/

Respondents and confirmed the grant of

occupancy rights relating to the land in question in

favour of the tenant/Appellant inter alia holding

that :-

1) The Landlords/Respondents could not prove by

cogent and sufficient evidence that they were in

cultivation of the land in question;

2) The presumption of the entry in the record of rights

stood rebutted by the oral evidence of the

tenant/appellant;

3) The admission of the Landlords/Respondents that

they were not staying in the Kumbarkoppa village would

itself be sufficient to grant occupancy rights in favour of

the appellant.

4 5 6) Aggrieved by the order of the Appellate Authority,

the Landlords/Respondents filed a revision petition

under Section 121A of the Act which came to be

registered as No. 1960 of 1989 before the High

Court of Karnataka at Bangalore. The High Court,

by the impugned judgment, had set aside the

concurrent findings of fact of the Tribunals below

and thereby allowed the application by the

landlords/respondents under Section 121A of the

Act and rejected the application of

tenant/appellant for grant of occupancy rights in

respect of the land in question. It was, inter alia,

held in the impugned order that the

tenant/appellant had failed to rebut the

presumption of entries in the record of rights by

adducing reliable evidence and, therefore, had

failed to prove their tenancy relating to the land in

question.

5 6 7) Before us, the pivotal issues raised by the learned

counsel for the parties were as follows:

a) Whether the High Court, exercising jurisdiction

under Section 121A of the Act can re-appreciate

the evidence and come to a contrary finding to

that of the Tribunals below ?

b) Whether the High Court, while exercising

jurisdiction under Section 121A of the Act, could

set aside the concurrent findings of fact recorded

by the Tribunals below only because another view

was possible ?

8) We have heard Mr. Chandrashekhar, learned

counsel appearing on behalf of the

tenant/appellant and Mr. S.N. Bhat, learned

counsel appearing on behalf of the

landlords/Respondents. We have carefully

examined the impugned judgment of the High

Court as well as the orders of the Tribunals below.

Before proceeding any further it is necessary to

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understand the scope of Section 121A of the Act.

The power conferred on the High Court to revise

the order of the Tribunal below has been provided

in Section 121A of the Act which reads thus:

"The High Court may at any time call for the records of any other order of proceeding recorded by the Appellate Authority under this Act or any other law for the purpose of satisfying itself as to the legality of such order or as to the regularity of such proceeding and may pass such order with respect thereto as it thinks fit."

9) The scope of Section 121A of the Act has been

widely discussed in the case of Jagdeesh v. State of

Karnataka [AIR 2008 SC 1304], in which one of us

was a party (Chatterjee J.). In paragraphs 8 and 9

of the said decision it has been made clear as to

when the High Court could interfere with the

concurrent findings of fact arrived at by the

Tribunals below in exercise of its jurisdiction under

Section 121A of the Act for setting aside the

concurrent orders of the Tribunals below. In this

view of the matter, it would be appropriate to

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reproduce Paragraphs 8 & 9 of the decision which

reads as below:

"8. From a plain reading of Section 121A of the Act, under which revisional jurisdiction can be exercised, it would be clear that the High Court, while exercising such power is entitled to re-appreciate the evidence when it finds that the conclusion arrived at by the appellate authority runs contrary to the materials on record and when it finds that there is no evidence to support the conclusion of the appellate authority or when it finds that the reasons given by the appellate authority are absolutely perverse and cannot be supported by the evidence on record. It would also be clear from a plain reading of Section 121A of the Act that the High Court is also entitled to interfere with the orders of the Tribunals below when the material evidence on record was ignored or a finding was such that no court would come to such conclusion or that the decision of the Tribunals below was manifestly unjust.

9. We have carefully examined the provisions under Section 121A of the Act, which is the revisional power under the Act, and also the provisions under Section 115 of the Code of Civil Procedure (for short "the Code"). So far as Section 115 of the Code is concerned, it has been made clear that it is only in case of a jurisdictional error or when the courts below had acted with material irregularity in the exercise of their jurisdiction that the question of interfering with such an order can arise, otherwise, the High Court is not entitled to interfere with any other order which does not satisfy the conditions laid down for interference under Section 115 of the Code. On the other hand, in our view, under Section 121A of the Act, it would be open to the High Court to interfere with the orders of the tribunals below as the High Court is empowered to look into the legality of the order or regularity of the proceedings although, in the exercise of

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revisional jurisdiction under Section 115 of the Code, the High Court is not entitled to look into the legality of the order or the regularity of the proceedings but only entitled to interfere with the orders of the Tribunals or the courts below when it finds that they have a) exercised a jurisdiction not vested in them by law, or b) failed to exercise a jurisdiction so vested, or c) acted in the exercise of their jurisdiction illegally or with material irregularity. Reading the aforesaid provisions viz., Section 121A of the Act and Section 115 of the Code, we have no hesitation in our mind to hold that the revisional power exercised by the High Court under Section 121A of the Act is wider than the one exercised by the High Court in its revisional jurisdiction under Section 115 of the Code. As noted herein earlier, since Section 121A of the Act clearly empowers the High Court to look into the legality of the orders impugned, therefore, it would be open to the High Court to consider the material evidence on record, when it finds that such evidence was not at all considered by the tribunals below or when the conclusion arrived at by the tribunals below run contrary to the materials on record or when it finds that there is no evidence to support the conclusion of the tribunals below or that the reasons given by the tribunals below are absolutely perverse or a finding was such that no court would come to such a conclusion or that the decisions of the tribunals below were manifestly unjust."

10)In the present case while setting aside the findings

of the Tribunal, the High Court made the following

findings:

"In the present case, except the oral evidence of the tenant no material has been placed before the court. According to the tenant, he is cultivating the land since 1962 and has been paying 40 bags of paddy per year

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towards rent. He has stated that he has got a residential house at Kumbarkoppa Village and also a cattle shed in the land. He has admitted that he has not taken any receipt from the landlords and that on the say of Eknath Gopal Navarekar, one of the landlords, he was coming to Kumbarkoppa to cultivate the land in question. As against this evidence there is evidence of the landlord who has stated that, though his two brothers are staying away from the land in question as they are in service, it is one of the brothers,, viz., Shankar Gopal Navarekar, Petitioner 2, who is staying at Haliyal which is just 5 km away, is getting the land cultivated through hired labourers or coolies. He has also stated the land was never leased to anybody and that sometimes the tenant was also engaged as a coolie.........................."

"He has further stated apart from the oral evidence that the landlords have produced the revenue records from the year 1962 onwards which shows that it is the petitioners who are in possession and cultivation of the land in question. The mode of cultivation is also shown as No. 2 which is through hired labourer or coolie. There is absolutely no rebuttable evidence produced or even suggested from him to show these entries are false and fabricated. As observed by this Court in the case of Radhakrishna Setty v. Land Tribunal, Somwarpet, & Another [1977(2) Kar.L.J., 281], the statutory presumption arising out of the revenue record should be given due importance and the mere subjective satisfaction of the Tribunal is not enough. The tribunal has to give reasons to discard the entries in the record of rights. Thus there is no rebuttal evidence led by the tenant to show that, though he was cultivating the land in question, his name was not entered for some reason or even due to high handedness of the landlords. The only circumstance relied upon by the Tribunal and the Appellate authority is the statement of the landlord that the tenant is residing at Kumbarkoppa and one of the tenant is staying at

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Haliyal which is 5km away and it is not possible for him to cultivate the land by himself or through coolie; that as 2 out of 3 Appellants are staying away on job it is not possible for the landlords to self- cultivate the land and that by admitting that the tenant was sometimes engaged as coolie, the presumption arising under Section 133 of the Act has been rebutted".

11)Finally, while setting aside the findings of fact, the

High Court, came to a conclusion:

"As noted by me earlier, the discussion of the Appellate Authority and the tribunal is absolutely based on no material evidence. The so called admissions of the landlord are not admissions at all..............

I find that the reasoning given by the Appellate Authority as well as by the Tribunal are totally baseless without any evidence and they have relied upon the so-called statement and arrived at the finding merely on conjectures and surmises."

12)From a careful examination of the findings given

by the High Court, as quoted hereinabove, it would

be clear that the High Court, while setting aside the

concurrent orders of the Tribunals below, has

rightly taken into consideration that although the

tenant/Appellant was claiming to be cultivating the

land in question, he had failed to produce any

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receipt taken from the Landlords/Respondents in

lieu of rent and on the other hand, the High Court

was fully justified in holding that the

Landlords/Respondents had produced the entries

made in record of rights relating to the land in

question from the year 1962 which amply proved

that the landlords/respondents were cultivating

the land in question and in absence of any reliable

evidence it was difficult to prove that the

tenant/appellant was in cultivation of the land in

question.

13)We are also in agreement with the High Court,

when the High Court had held that the statutory

presumption arising out of the revenue record

must be given due importance and mere subjective

satisfaction of the tribunal was not enough. It was

for the tribunal to give reasons to discard the

entries made in the record of rights. The High

Court also, in our view, was fully justified that

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there was absolutely no rebuttal evidence led by

the tenant/appellant to show that though he was

cultivating the land in question his name had not

been entered for some reason or even due to the

high handedness of the landlords/respondents.

Furthermore, in view of our discussions and

findings made herein above and considering the

power and scope of the High Court under Section

121A of the Act to interfere with the findings of fact

of the courts below and the power and scope of the

High Court to interfere under Section 115 of the

Code of Civil Procedure, we do not find any ground

to upset the judgment of the High Court which is

impugned before us.

14)Accordingly, we do not find any infirmity and

illegality in the impugned judgment of the High

Court. The appeal has thus no merit and is,

therefore, dismissed and there will be no order as

to costs.

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......................................J. (TARUN CHATTERJEE)

..................................... ...J. (DALVEER BHANDARI) New Delhi;

December 14, 2009.

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