NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION   

CIVIL APPEAL NO.1848 OF 2005

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

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.   

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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.   

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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.

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