ABDUL KHADER (D) BY LRS. Vs TARABAI .
Bench: G.S. SINGHVI,K.S. PANICKER RADHAKRISHNAN, , ,
Case number: C.A. No.-001848-001848 / 2005
Diary number: 1827 / 2003
Advocates: V. N. RAGHUPATHY Vs
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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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