1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 17

TH

DAY OF NOVEMBER, 2022

PRESENT

THE HON’BLE MR. JUSTICE ALOK ARADHE

AND

THE HON’BLE MR. JUSTICE S.VISHWAJITH SHETTY

W.A.No.3065/2013 (LR-SEC 48-A)

BETWEEN:

1. MISS CHANDRA R

D/O LATE DR. RAJARATHNAM

AGED ABOUT 75 YEARS

RESIDING AT B-3, KEB LAYOUT

BANNERGHATTA ROAD

BANGALORE - 560 076.

2. MRS AMBUJAM SIMON

D/O LATE DR. RAJARATHNAM

AGED ABOUT 74 YEARS

RESIDING AT NO.1284, 3RD STREET

GOLDEN COLONY, MOGAPPAIR

CHENNAI - 600 050.

3. MRS. JEEVANATHI DEVASHAYAM

W/O LATE ALEXANDER DEVASAHAYAM

AGED ABOUT 68 YEARS

RESIDING AT A-1, EWST WING

GRACE GARDEN APARTMENTS

HENNUR MAIN ROAD

BANGALORE - 560 043.

4. SRI DAVID R DEVASHAYAM

S/O LATE ALEXANDER DEVASAHAYAM

AGED ABOUT 50 YEARS

R/AT NO.H-131, D.D.A FLATS

ASHOK VIHAR PHASE - 1

NEW DELHI - 110 052.

R

2

5. DR. MERCY DEVASHAYAM

D/O LATE ALEXANDER DEVASAHAYAM

AGED ABOUT 48 YEARS

R/AT NO.H-131, D.D.A FLATS

ASHOK VIHAR PHASE - 1

NEW DELHI - 110 052.

6. SMT HEPSIBA LAL

S/O LATE ALEXANDER DEVASAHYAM

AGED ABOUT 46 YEARS

R/AT NO.H-131, D.D.A FLATS

ASHOK VIHAR PHASE - 1

NEW DELHI - 110 052.

7. SRI NITYANADAM

S/O LATE D. RAJARATHNAM

AGED ABOUT 70 YEARS

R/AT B-3, KEB LAYOUT

BANNERGHATTA ROAD

BANGALORE - 560 076.

8. SRI VICTOR THYAGARAJ J

D/O LATE DR.RAJARATHNAM

AGED ABOUT 66 YEARS

RESIDING AT FLAT A, "D" BLOCK

PADIKUPPAM ROAD, SRI BALAJI NAGAR

ANNA NAGAR WEST, CHENNAI - 600 040.

9. DR. R. EARNEST DHANRAJ

S/O LATE D. RAJARATHNAM

AGED ABOUT 64 YEARS

R/AT NO.177, RAJRATHNAM STREET

CARMEL, DAISY NAGAR, KALPUDUR

KATAPADI, VELLORE DISTRICT

TAMILNADU - 632 059.

APPELLANTS NO.1 TO 9 ARE

REPRESENTED BY THEIR

GENERAL POWER OF ATTORNEY HOLDER

SRI R. ALBERT SELVARAJ

S/O LATE DR. RAJARATHNAM

AGED ABOUT 67 YEARS

R/AT A-1, WEST WING

GRACE GARDEN APARTMENTS

HENNUR MAIN ROAD

BANGALORE - 560 043.

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10. SRI R. ALBERT SELVARAJ

S/O LATE DR. RAJARATHNAM

AGED ABOUT 67 YEARS

R/AT A-1, WEST WING

GRACE GARDEN APARTMENTS

HENNUR MAIN ROAD

BANGALORE - 560 043. ...APPELLANTS

(BY SMT. NALINI CHIDAMBARAM, SR. COUNSEL FOR

SRI D. ASWATHAPPA, ADV.)

AND:

1. THE STATE OF KARNATAKA

REPRESENTED BY ITS PRINCIPAL

SECRETARY, DEPARTMENT OF REVENUE

M.S. BUILDING, BANGALORE - 560 001.

2. SRI SIDDARANGASWAMY

SINCE DECEASED BY HIS LRS.

2A) SMT. ANJINAMMA

W/O LATE SIDDARANGASWAMY

AGED ABOUT 66 YEARS.

2B) SMT. LAKSHMI DEVI

D/O LATE SIDDARANGASWAMY

AGED ABOUT 45 YEARS.

2C) SMT. RUPA

D/O LATE SIDDARANGASWAMY

AGED ABOUT 43 YEARS.

2D) SRI PRAVIN KUMAR

S/O LATE SIDDARANGASWAMY

AGED ABOUT 41 YEARS.

2E) SRI NAVEEN KUMAR

S/O LATE SIDDARANGASWAMY

AGED ABOUT 38 YEARS.

ALL ARE RESIDING AT NEAR BHARAT GAS

KAKOLU ROAD, RAJANUKUNTE VILLAGE

HESARGAHATTA HOBLI

BANGALORE NORTH TALUK

BANGALORE - 560 064.

4

3. SRI KRISHNAPPA

S/O LATE CHANDRAPPA

AGED ABOUT 61 YEARS

R/AT RAJANKUNTE VILLAGE

HESARGHATTA HOBLI

BANGALORE NORTH TALUK

BANGALORE - 560 064.

4. SRI RAJANNA

S/O LATE CHANDRAPPA

AGED ABOUT 59 YEARS

R/AT RAJANKUNTE VILLAGE

HESARGHATTA HOBLI

BANGALORE NORTH TALUK

BANGALORE - 560 064.

5. SRI JAYANNA

S/O LATE CHANDRAPPA

AGED ABOUT 55 YEARS

R/AT RAJANKUNTE VILLAGE

HESARGHATTA HOBLI

BANGALORE NORTH TALUK

BANGALORE - 560 064.

6. SMT. RANGAMMA

D/O LATE CHANDRAPPA

AGED ABOUT 73 YEARS

R/AT NO.80/75, 8TH CROSS

17TH MAIN ROAD, J.C.NAGAR

BANGALORE - 560 086.

7. SMT. GOWRAMMA

D/O LATE CHANDRAPPA

AGED ABOUT 48 YEARS

SHESHAPPA BAVI, ALMALGE ROAD

DODDABALLAPUR, BANGLORE

RURAL DISTRICT - 562 224.

8. THE LAND TRIBUNAL BANGALORE

NORTH TALUK, VISHWESHWARAIAH

CENTRE PODIUM BLOCK

BANGALORE - 560 001. ...RESPONDENTS

(BY SRI B. RAJENDRA PRASAD, HCGP FOR R-1 & R-8;

SRI UDAYA HOLLA, SR. COUNSEL FOR

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SRI H.P. LEELADHAR, ADV., FOR R-2 (A-E);

R-3, R-4, R-5, R-6 & R-8 ARE SERVED;

V/O DATED 25.03.2015 NOTICE TO R-7

IS DISPENSED WITH)

THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE

KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE

ORDER PASSED IN THE WRIT PETITION NO.48674/11 DATED

15/02/2013.

THIS APPEAL HAVING BEEN HEARD AND RESEVED,

COMING ON FOR PRONOUNCEMENT THIS DAY, VISHWAJITH

SHETTY J., DELIVERED THE FOLLOWING:

J U D G M E N T

This intra court appeal is filed assailing the ord er

dated 15.02.2013 passed by the learned Single Judge of

this Court in W.P.No.48674/2011.

2. Heard the learned Senior Counsel appearing for

the parties, the Additional Government Advocate for

respondent nos.1 & 8 and also perused the material

available on record.

3. Brief facts of the case as revealed from the

records which would be necessary for the purpose of

disposal of this appeal are, land bearing Sy. No.31 /1

(New No.53) of Ramanahalli village, Hesaraghatta Ho bli,

Bengaluru North Taluk, measuring 5 acres (hereinaft er

referred to as 'the land in dispute') was granted to one

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Sri Rajarathnam on 16.10.1946. Rajarathnam died on

01.09.1963 and he was survived by his seven childre n

who inherited the land in dispute. After coming into force

of the Act No.1 of 1974 with effect from 01.03.1974, the

father of respondent nos.2 to 7 herein - late Sri

Chandrappa had filed Form No.7 on 23.12.1974 under

Section 45 of the Karnataka Land Reforms Act, 1961 (for

short, 'the Act') claiming occupancy rights of the land in

dispute contending that he was the tenant in occupation

and cultivation of the land in dispute for the last about 15

years.

4. In the Form No.7 filed by Chandrappa, he had

shown the name of Rajarathnam as the landlord of th e

land in dispute. Before the Land Tribunal, the legal heirs

of late Rajarathnam were brought on record and they

had participated in the enquiry proceedings. The La nd

Tribunal vide its order dated 07.08.1979 had grante d

occupancy rights of the land in dispute in favour o f

Chandrappa. The legal heirs of Rajarathnam had file d

W.P.No.33828/1996 challenging the said order dated

07.08.1979 passed by the Land Tribunal. This Court had

7

allowed the said writ petition and remitted the matter to

the Land Tribunal for fresh consideration. After remand,

the Land Tribunal recorded further evidence of the

parties and by order dated 29.01.2005 once again

granted occupancy rights of the land in dispute in favour

of the claimant - Chandrappa. The said order was

challenged by the legal heirs of Rajarathnam in

W.P.No.16625/2005 which was allowed and the matter

was remitted by this Court vide order dated 12.03.2008.

5. Subsequent to the second remand, when the

matter was pending before the Land Tribunal, the

claimant - Chandrappa died and his legal heirs who are

respondent nos.2 to 7 had come on record. The Land

Tribunal, thereafter, vide order dated 08.12.2011

rejected the Form No.7 filed by the claimant and be ing

aggrieved by the said order, respondent no.2 -

Siddrangaswamy who is one of the legal heir of the

claimant had filed W.P.No.48674/2011 before this Co urt

and the learned Single Judge of this Court vide the order

impugned has allowed the writ petition and the order of

the Land Tribunal was quashed and the claimant was

8

conferred with the occupancy rights in respect of the land

in dispute. Being aggrieved by the said order, the legal

heirs of the landlord late Rajarathnam have preferred this

intra court appeal.

6. Smt. Nalini Chidambaram, learned Senior

Counsel appearing for the appellants submits that Form

No.7 was filed by the claimant as against a dead person,

and therefore, the Land Tribunal could not have

entertained the same and occupancy rights of the land in

dispute cannot be granted in favour of the claimant. She

submits that the land was granted to late Rajarathnam in

the year 1946 considering his service in the military, and

therefore, unless a notification is issued under Section

15(6) of the Act vesting the land with the State, t he

claim made for grant of occupancy rights in respect of

the land in dispute cannot be considered by the Lan d

Tribunal. She submits that the claimant has not produced

any rent receipts for having paid the rent or wara nor has

he deposited the same before the competent authorit y

and she has invited the attention of this Court to Section

9 of the Act in support of this contention of hers. She has

9

also contended that the land in dispute was through out

cultivated personally by the landlord - Rajarathnam and

after his death by his legal heirs and at no point of time,

the land in dispute was leased to the claimant -

Chandrappa and he was not a tenant of the land in

dispute. She submits that the claimant was holding other

lands in the same village and she also refers to a

document, wherein the claimant had sold certain lan d

and submits that from the aforesaid document it can be

gathered that the claimant was not a tenant of the land

in dispute. In support of her arguments, she has relied

upon the judgments in the case of

Y.V.SRINIVASA RAO

& ANOTHER VS ERANICKA - 2002(2) KAR.LJ 236,

S.MALLIKARNJUNAPPA VS STATE OF KARNATAKA &

ORS. - ILR 2004 KAR 2119

, and GANGAPPA YAMANAPPA

CHALAWADI VS STATE OF KARNATAKA & OTHERS -

2007 SCC Online KAR 392

.

7. Per contra, Sri Udaya Holla, learned Senior

Counsel appearing for the legal heirs of the claima nt

submits that the appellants have not produced any

material either before the Land Tribunal or before this

Court to show that late Rajarathnam was in military

10

service. He submits that except the oral statement of his

son - Albert Selvaraj, there is no material available on

record so as to establish that late Rajarathnam was in

military service and considering the same, the land in

dispute was granted to him. He submits that the oral and

documentary evidence available on record were not

properly appreciated by the Land Tribunal and there by

the Land Tribunal has erred in rejecting the claim for

grant of occupancy rights of the land in dispute. H e

submits that the material on record would go to sho w

that late Rajarathnam was serving in the office of the

Accountant General and he had retired in the year 1952

and except that there is no material to show that he was

in military service. He also submits that the letter-head

of the Accountant General appears to have been misused

by the legal heirs of late Rajarathnam to establish that he

was in military service earlier. He submits that the grant

certificate issued on 16.10.1946 indicates that

Rajarathnam had purchased the land in dispute under an

auction sale, and therefore, the grant cannot be

considered as a grant made in favour of a soldier.

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8. Learned Additional Government Advocate

appearing on behalf of respondent nos.1 & 8 has als o

argued in support of the order impugned passed by t he

learned Single Judge and has prayed to dismiss the

appeal.

9. The points that arise for consideration in this

intra court appeal are as follows:

(i) whether the appellants have proved

the requirement of issuance of a notification

under Section 15(6) of the Act for considering

claimant's Form No.7?

(ii) whether the Land Tribunal was

justified in rejecting the Form No.7 filed by the

claimant?

10. Point no.(i)

: It is the specific case of the

appellants that the land in dispute was granted to late

Rajarathnam in the year 1946, who was in military

service and the said land was cultivated by Rajarathnam

personally during his life time and thereafter by his legal

heirs and at no point of time the land in dispute w as

leased to the claimant Chandrappa. It is also their case

that since late Rajarathnam was a soldier, in the absence

of a notification under Section 15(6) of the Act, t he

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claimant is not entitled for grant of occupancy rights of

the land in dispute.

11. Section 5 of the Act provides for prohibition of

leases, etc., but it makes an exception in respect of a

tenancy created or continued by a soldier or seaman and

Section 15 of the Act provides for resumption of land by

soldier or seaman. The expression "land" appearing in

the aforesaid two sections is the land which falls within

the definition of "land" under Section 2(A)(18) of the Act.

12. Sections 5 & 15 of the Act reads as under:

"5. Prohibition of leases, etc.- (1) Save

as provided in this Act, after the date of

commencement of the Amendment Act, no

tenancy shall be created or continued in

respect of any land nor shall any land be

leased for any period whatsoever.

(2) Nothing in sub-section (1) shall apply

to.-

(a) a tenancy created or continued by

a soldier or seaman if such tenancy

is created or continued while he is

serving as a soldier or a seaman or

13

within three months before he

became a soldier or a seaman.

(b) to any land leased after the

commencement of the Karnataka

Land Reforms (Amendment) Act,

1995 in the districts of Uttara

Kannada and Dakshina Kannada by

land owners or persons registered

as occupants under the provisions

of this Act for the purpose of

utilising the land for acquaculture

for a period not exceeding twenty

years, at such lease rent as may

be determined by mutual

agreement between the parties

and such agreement shall be

registered and a copy thereof shall

be sent to the Deputy

Commissioner within fifteen days

from the date of such registration.

(3) Every lease created under sub-

section (2) shall be in writing."

"15. Resumption of land by soldier or

seaman.- (1) A soldier or a seaman who has

created or continued a lease in accordance

with the provisions of Section 5 shall, subject

to the provisions of this Act, be entitled to

resume land to the extent of the ceiling area

14

whether his tenant is a protected tenant or

not.

(2) The soldier or the seaman shall, if he

bona fide requires the land to cultivate

personally, issue a notice to the tenant

requiring him to deliver possession of the land

within the period specified in the notice, which

shall not be less than the prescribed period.

(3) The notice referred to in sub-section

(2) shall be given.-

(i) in the case of a soldier in service in

the Armed Forces of the Union, at

any time not later than one year

from the date on which he is

released from the Armed Forces or

is sent to the reserve;

(ii) in the case of the father, mother,

spouse, child or grand-child of a

soldier, within one year from the

date of the death of such soldier,

and

(iii) in the case of a seaman, within one

year from the date on which he

ceases to be a seaman.

(4) If the tenant fails to deliver

possession of the land within the period

specified in the notice, the soldier or the

15

seaman may make an application to the

Tahsildar within whose jurisdiction the greater

part of the land is situated, furnishing the

prescribed particulars for eviction of the tenant

and delivery of possession of the land.

(5) On receipt of such application, the

Tahsildar shall issue a notice to the tenant

calling upon him to deliver possession of the

land to the soldier or the seaman within such

time as may be specified in the notice, which

shall not be less than the prescribed period and

if the tenant fails to comply, the Tahsildar may

summarily evict the tenant and deliver

possession of the land to the soldier or the

seaman.

(6) Where the Tahsildar, on application

by the tenant or otherwise and after such

enquiry as may be prescribed, is satisfied that

a notice as required by sub-section (2) is not

issued, he shall, by notification, declare that

with effect from such date as may be specified

in the notification the land leased shall stand

transferred to and vest in the State

Government free from all encumbrances. The

Tahsildar may take possession of the land in

the prescribed manner and the tenant shall be

entitled to be registered as an occupant

16

thereof. The provisions of Section 45 shall

mutatis mutandis apply in this behalf."

13. From a reading of Section 5(1) of the Act, it is

clear that no tenancy shall be created or continued in

respect of any land nor shall any land be leased for any

period whatsoever after coming into force of the

Amendment Act No.1 of 1974 with effect from

01.03.1974, and the prohibition under Section 5(1) of the

Act would not be applicable for the tenancy created or

continued and land leased as provided under Section 5(2)

of the Act. The Division Bench of this Court in

NARASING

GOPALRAO DESAI VS THE LAND TRIBUNAL, KHANAPUR

- (1984)1 KLJ 360

, has held that even though under sub-

section (1) of Section 5 of the Act, there is a tot al

prohibition of leasing agricultural lands, sub-section (2)

permits a soldier or seaman to create or continue t he

tenancy. In the case of

BALASAHEB VENKATESH

KHASBAGH @ KULKARNI VS LAND TRIBUNAL, BELGAUM

- 1985(2) KLJ 569

, it has been held that a lease whether

created, continued or granted by a soldier or a seaman

must be in writing.

17

14. Section 15(1) of the Act provides for

resumption of land of which lease was created or

continued by a soldier or a seaman as provided unde r

Section 5(2) of the Act and Section 15(2) provides for

issuance of notice by the soldier or seaman to the tenant

and Section 15(3) provides for as to how notice referred

to in sub-section (2) shall be given. Section 15(3) (ii)

provides that if the soldier is dead, his parents, spouse,

children and grand children shall give notice referred to

in sub-section (2) within one year from the date of death

of the soldier. Section 15(6) provides that if a notice as

required under sub-section (2) is not issued, the

Tahsildar shall issue a notification and from the d ate

mentioned in such notification, the leased land sha ll

stand transferred to and vest with the State Government

free from all encumbrances and only thereafter, the

tenant shall be entitled to be registered as an occupant of

the leased land.

15. In Narasingh Gopalrao Desai's case (supra), th e

Division Bench of this Court has held that unless a

notification under Section 15(6) of the Act is issu ed

18

declaring vesting of the land leased by a soldier, the

occupancy rights in respect of such land cannot be

granted under Section 48-A of the Act. The same has

been reiterated in the case of Y.V.Srinivasa Rao's case

(supra) and at paragraph 9 of the said judgment, it has

been observed as under:

"9. This interpretation of mine is also

based on the pronouncement of the Division

Bench of this Court in the case of Narasing

Gopalrao Desai v Land Tribunal, Khanapur. The

Division Bench of this Court has in detail

considered these aspects and has held that "a

tenant of a soldier or seaman cannot get

occupancy right unless the land is vested in the

Government by a special declaration made to

that effect by the Tahsildar as required under

Section 15(6) of the Act. Such a land is not

vested in the State under Section 44. Section

44 of the Act makes an exception to lands held

by tenants under the lease given or continued

by a soldier or seaman. Section 5(2) permits a

soldier or seaman to create or continue the

tenancy although there is a total prohibition of

such leasing of agricultural lands under Section

5(1). Hence, if the tenant in occupancy of such

a land approached the Tribunal for occupancy,

the Tribunal cannot grant occupancy, unless

19

there is a proof of vesting of that land under

Section 15(6). If the proceedings are before

the Tahsildar, the Tribunal shall defer

consideration of the application for occupancy

till the proceedings before the Tahsildar are

completed or the appeal, if any, is disposed by

the Assistant Commissioner"."

16. The original owner of the land in dispute late

Sri Rajarathnam has died on 01.09.1963. Section 15 of

the Act gets attracted only if the soldier or seaman has

created or continued the lease in accordance with t he

provisions of Section 5 of the Act. Sections 5 & 15 of the

Act were substituted by the Act of 1974 with effect from

01.03.1974. Prior to the same, the statute did not

provide for issuing notification of vesting as provided

under Section 15(6) of the Act. Therefore, for the

purpose of issuing a notification under Section 15(6) of

the Act, it has to be first established that the soldier had

created or continued the lease as provided under Section

5(2) of the Act. It is the specific case of the appellants

that the land in dispute was never leased to the claimant

and he was not their tenant at any point of time. If that

is so, Section 15 of the Act which provides for resumption

20

of tenanted/leased land by the soldier does not get

attracted.

17. The lease/tenancy under Section 5(2)(a) of the

Act is required to be created or continued by the soldier

while he was serving as a soldier or within three months

before he became a soldier and such a lease is required

to be in writing. There is no document available on record

establishing creation or continuation of lease as provided

under Section 5(2)(a) of the Act.

18. The material on record would go to show that

prior to his death, late Rajarathnam was serving in the

office of Accountant General, Bengaluru. The appellants

have not produced any material before the Land Tribunal

or before this Court to show that as on the date of grant

of the land in dispute, Rajarathnam was serving as a

soldier. Unless they establish that late Rajarathnam had

created or continued the lease/tenancy of the land in

dispute when he was serving as a soldier or within three

months before he became a soldier and the tenant ha d

filed application under Section 45 of the Act claim ing

occupancy rights of the land which was subject matter of

21

such lease, the requirement of issuing any notification of

vesting under Section 15(6) of the Act does not ari se,

and therefore, even if the Tahsildar has not issued any

notification under Section 15(6) of the Act, the same will

not come in the way of considering the claim of the

tenant under Form No.7 for grant of occupancy rights of

the land in dispute. The burden to prove that the

tenancy/lease was created or continued by a soldier while

he was serving as a soldier or within three months before

he became a soldier is on the appellants/landlords and in

the present case they have failed to discharge the same,

and therefore, the Land Tribunal was not justified in

holding that the claimant is not entitled to be registered

as a occupant of the land in dispute in the absence of a

notification of vesting under Section 15(6) by the

Tahsildar. Accordingly, we answer point no.(i) for

consideration in the negative.

19. Point no.(ii)

:- The Form No.7 was filed by the

claimant showing late Rajarathnam as the landlord of the

land in dispute. The material on record would go to show

that his children were brought on record before the Land

22

Tribunal and thereafter throughout they have

participated in all the proceedings, and therefore, there is

no merit in the contention urged on behalf of the

appellants that Form No.7 of the claimant was liable to

be dismissed since the same was filed against a dea d

person.

20. The claimant has stated in his Form No.7 filed

on 23.12.1974 that he was the tenant of the land in

dispute for the last about 15 years. The material o n

record would go to show that late Rajarathnam was

serving in the office of Accountant General and he had

retired in the year 1952. Though the appellants who are

the legal heirs of late Rajarathnam have contended that

the land in dispute was cultivated by Rajarathnam during

his life time and thereafter by his legal heirs, they have

failed to prove the same. Late Rajarathnam who died in

the year 1963 had seven children and the material o n

record would go to show that five of them had settled out

of Bengaluru and only two of them viz., Nithyananda and

Albert Selvaraj were residing in Bengaluru. Nithyananda

was an employee of a private company and he is residing

23

at Bannerghatta while Albert Selvaraj was in defenc e

service and after his retirement, he has settled at

Hennur.

21. Nithyananda has admitted in his statement

recorded before the Land Tribunal that he had seen the

claimant Chandrappa cultivating the land in dispute. The

claimant has deposed before the Land Tribunal

contending that he was the tenant of the land in dispute

under late Rajarathnam and the landlords were

periodically collecting their share in the crop grown by

him towards rentals. His witness Veeranna has

corroborated this evidence and has stated that

Chandrappa was growing Ragi and Hurali crops in the

land in dispute. Even the other witnesses examined on

behalf of Chandrappa have corroborated his evidence .

Ex.R-4 - sketch dated 12.02.1977 prepared by the

Surveyor shows that claimant is in occupation of the land

in dispute.

22. The entries in the revenue records of the land

in dispute for the period from 1971-72 onwards stand in

the name of the claimant Chandrappa, and therefore,

24

there is a presumption under Section 133 of the

Karnataka Land Revenue Act, 1964, in favour of the

claimant. The appellants have failed to rebut the s aid

presumption. In addition to this statutory presumption,

the above referred oral and documentary evidence wo uld

also go to show that the claimant was in occupation and

cultivation of the land in dispute as on 01.03.1974 and

immediately prior to the said date. The appellants have

specifically contended that non-issuance of notification of

vesting under Section 15(6) of the Act disentitles the

claimant to be registered as an occupant of the land in

dispute as the same belonged to a soldier. Section 15 of

the Act provides for resumption of leased or tenant ed

land by the soldier, if such a lease or tenancy is created

or continued by the soldier in accordance with the

provisions of Section 5 of the Act. Therefore, the

appellants have impliedly admitted the tenancy of t he

claimant Chandrappa.

23. In the case of PANDURANG JIVAJIRAO

MANGLEKAR BY LRS VS STATE OF KARNATAKA - ILR

2007(3) KAR 3602

, it has been held by this Court that

where the landlord's witness has admitted claimant' s

25

possession as a tenant, it is the best evidence against the

party making it and hence, claimant was entitled fo r

grant of occupancy rights.

24. In the case of SRIKANTE GOWDA VS LAND

TRIBUNAL - 1977(2) KLJ 126

, it has been held by this

Court that the statutory presumption as to the record of

rights under Section 133 of the Karnataka Land Revenue

Act, 1964, cannot be ignored unless such presumption is

rebutted in accordance with law. The circumstantial

evidence along with oral evidence was required to b e

considered by the Land Tribunal.

25. The Division Bench of this Court in the case o f

RADHAKRISHNA SETTY VS THE LAND TRIBUNAL -

1977(2) KLJ 281

has held that the Land Tribunal is

bound by the statutory presumption as to entries ma de

in the record of rights and the order of the Tribun al

without any reference to such entries and having no

discussion as to the oral evidence is not valid.

26. It is the specific case of the claimant that t he

landlords were collecting share in the crop grown by him

in the land in dispute, towards rentals. It is not his case

26

that the landlord was refusing to collect rent or wara.

Therefore, there is no requirement of compliance of

Section 9 of the Act by the claimant as contended by the

appellants. It is trite law that rent receipts alone cannot

be considered as a proof for tenancy. The oral and

documentary evidence available on record conclusive ly

prove that the claimant was in occupation and cultivation

of the land in dispute as a tenant as on 01.03.1974 and

immediately prior to the said date, and therefore, non-

production of any rent receipts would be immaterial in

the present case for deciding the issue of tenancy. The

judgment in S.Mallikarjunappa's case and Gangappa

Yamanappa Chalawadi's case supra would therefore no t

be applicable to the facts of the present case.

27. The fact that the claimant owned some other

land or he has sold certain land for valuable

consideration, etc., are irrelevant for the purpose of

considering his claim for grant of occupancy rights of the

land in dispute. What was required to be considered by

the Land Tribunal was whether the claimant had prov ed

that he was in occupation and cultivation of the la nd

27

which was the subject matter of Form No.7 as on

01.03.1974 and immediately prior to the said date a s a

tenant of the said land and if such tenancy was created

or continued by a soldier, whether the same was created

or continued in compliance of the requirements of

Section 5(2)(a) of the Act. The Land Tribunal,

unfortunately has placed reliance upon irrelevant

material and has erroneously rejected Form No.7. We ,

therefore, answer point no.(ii) also in the negative.

28. In the earlier two rounds of litigation, the Land

Tribunal had granted occupancy rights of the land i n

dispute to the claimant. In the third round, the La nd

Tribunal has completely overlooked the relevant evidence

available on record and has proceeded to dismiss th e

Form No.7 on irrelevant considerations. The Land

Tribunal at one breath has held that the claimant's Form

No.7 cannot be considered by it since a notification of

vesting under Section 15(6) of the Act is not issued by

the Tahsildar, and on the other hand, the Land Tribunal

has also held that the landlords are in possession of the

land in dispute and the lands were not leased to th e

28

claimant at any point of time. The said two findings are

contradictory and cannot go together. The learned Single

Judge was, therefore, fully justified in quashing t he

impugned order passed by the Land Tribunal and

granting occupancy rights of the land in dispute to the

claimant in exercise of his powers under Article 226 of

the Constitution of India. We do not see any illegality,

infirmity or perversity in the said order. The writ appeal,

therefore, lacks merit and accordingly, the same is

dismissed.

SD/-

JUDGE

SD/-

JUDGE

KK