Case: B.S. Mahabala Vs. Gopala Krishna &amp; Another

2. The said Channappa Poojary had occupancy rights being a Chalgeni tenant in land bearing Survey Nos. 46/2A, 46/2D, 46/2K, 46/1E, 46/10, 46/3, 46/4B, 47/1D, 47/1B and 47/1E of Navoor village, Bantawal Taluk, Dakshina Kannada District. The said land originally belonged to one Smt. Gummanna Shetty, the predecessor of Respondent Nos. 2A/1, 2/2 and 2B. Respondent No.1 is the son of Channappa Poojary since deceased; and the Appellant is the nephew of Channappa Poojary.3. After the amendment to the Karnataka Land Reforms Act came into force on 09.06.1974, Channappa Poojary filed an application in Form No.7 before the Land Tribunal for grant of occupancy rights in respect of the said lands. During the pendency of the said application, Channappa Poojary died on 17.10.1979. The Appellant appeared in the said proceedings claiming that Channappa Poojary, during his life time, had executed a Will in his favour bequeathing the rights in the said lands to him. On the strength of the said Will, the Appellant claimed that the proceedings should be decided in his favour. The Land Tribunal accepted the claim of the Appellant and vide order dated 04.10.1980 granted occupancy rights to the Appellant in respect of the said lands. At the time of passing of the aforesaid order, Respondent No.1 was a minor. After attaining majority he filed a writ petition before the High Court on 05.10.2004. By that time he had turned 21 years after attaining majority. In the writ petition, however, he asserted that until recently he had no knowledge about the passing of the order by the Land Tribunal in favour of the Appellant.4. The learned Single Judge before whom the writ petition proceeded on 03.04.2012, however, was not impressed by the said plea. The learned Single Judge in the said order noted that the Respondent No.1 could not be permitted to challenge the order of Land Tribunal in favour of the Appellant after nearly 31 years; and also rejected the contention of Respondent No.1 that the Will in favour of the Appellant was hit by Section 21 of the said Act. However, on 19.04.2012 presumably on an application for speaking to the minutes of the order, the learned Single Judge modified the order dated 03.04.2012 by allowing the writ petition filed by the Respondent No.1. The learned Single Judge noted that, the fact as to whether the Will executed in favour of the Appellant was hit by Section 21 or otherwise was a matter to be considered by the Land Tribunal. The learned Single Judge also noted that the Land Tribunal could not have finally decided the proceedings without bringing the legal representatives of deceased Channappa Poojary on record. Accordingly, the learned Single Judge was pleased to set aside the order passed by the Land Tribunal and instead remanded the case to the Land Tribunal for fresh disposal, keeping in view Section 21 of the said Act and after affording opportunity to the legal representatives of the deceased Channappa Poojary.5. Aggrieved, the Appellant preferred Writ Appeal No.2644 of 2012 (LR) before the Division Bench. The Division Bench, after considering the submissions, declined to interfere with the remand order passed by the learned Single Judge while holding the same was just and proper. The Division Bench rejected the plea taken by the Appellant that the learned Single Judge could not have modified the order on 19.04.2012 having become functus officio. Even the argument of the Appellant that the writ petition filed by the Respondent No.1 suffered from laches, came to be rejected. Accordingly, the remand order passed by the learned Single Judge was affirmed by the Division Bench.

Reasoning:
8. Having considered the rival submissions and after perusing the judgment of the learned Single Judge and of the Division Bench, we are not inclined to interfere in this appeal. For, the learned Single Judge has only remanded the matter to the Land Tribunal for fresh consideration of all aspects after giving opportunity to the legal representatives of the deceased tenant Channappa Poojary. The Appellant will get an opportunity to raise all contentions that may be available to him in law for grant of occupancy rights in respect of the said lands in his favour on the basis of the Will executed by deceased Channappa Poojary. Whether that Will is admissible in evidence or is a genuine Will is a matter which must receive attention of the Land Tribunal. Besides, the Land Tribunal must also address itself as to whether any transfer by way of a Will in favour of person(s) other than spouse, minor sons, unmarried daughters, is permissible in law keeping in mind the rigours of Section 21 read with 2(12) and other applicable provisions of the said Act. The legal position in that behalf has already been expounded by this Court in the case of Sangappa Kalyanappa Bangi (Supra) and Jayamma (Supra). There is no reason to entertain any apprehension, by any party, that the matters in issue will not be adjudicated by the Land Tribunal, keeping in view the provisions of the said Act and the settled legal position expounded in the aforesaid reported decisions.9. The argument of the Appellant that the order passed by the Land Tribunal on 04.10.1980 cannot be allowed to be challenged at this distance of time, in our opinion, is misplaced. We agree with the view expressed by the Division Bench of the High Court that the Land Tribunal committed manifest jurisdictional error by passing an order in favour of the Appellant behind the back of the legal representatives of the deceased tenant/applicant. For, it could not have proceeded with the inquiry behind the back of the legal representatives of the deceased tenant without bringing them on record in the proceedings pending before it. Such exercise of jurisdiction is bordering on passing an order which is nullity in the eyes of law. It would have been a different matter if the Land Tribunal had consciously proceeded on being satisfied that the deceased tenant Applicant has not left behind any legal representative who could espouse his or their cause further. No attempt was made by the Land Tribunal to ascertain about the possibility of any objection from any legal representative of the deceased tenant/Applicant before bestowing occupancy rights in favour of the Appellant on the basis of the alleged Will executed by Channappa Poojary.10. As the order passed by the Land Tribunal is vitiated due to failure to bring on record the legal representatives of deceased Applicant Channappa Poojary and also without considering the mandate of Section 21 of the Act, the objection regarding the manner of interference by the Learned Single Judge of the High Court does not commend to us. The Respondent No. 1 in his writ petition had offered explanation about the circumstances in which he could file the writ petition only after getting knowledge of the order in the 1st week of April, 2004. Further, the plea of laches cannot be countenanced in light of the assertion of the Respondent No. 1 that, taking advantage of his minority, the Appellant succeeded in misleading the Land Tribunal to pass an order in his favour on the basis of an alleged Will executed by Channappa Poojary. This technical plea has been rightly negatived by the High Court in the fact situation of the present case involving the permissibility of transfer of tenancy by a Will to third person who is not covered by the excepted category of persons. Thus, the legal principle expounded in the case of State of Rajasthan v. D.R. Laxmi and Ors., (1996) 6 SCC 445     and Tayabbhai M. Bagasarwalla v. Hind Rubber Industries Pvt. Ltd., 1997(2) R.C.R.(Civil) 473 : 1997(2) R.C.R.(Rent) 682 : (1997) 3 SCC 443  , will be of no avail to the Appellant. The Respondent No. 1 has justly relied on the decisions in the case of Hasham Abbas Sayyad (supra) to buttress his plea that the objection regarding procedural matters cannot come in the way in a case where an order passed by the Tribunal is without jurisdiction as in this case and that issue can be raised at any stage [see Zuari Cement Limited (supra)].11. As aforesaid, the Tribunal must and will have to first consider the legal position as to whether the Appellant can legitimately claim to be a legal heir of the deceased tenant within the meaning of Section 21 read with 2(12) and other applicable provisions of the said Act; and only on recording finding on that issue in favour of the Appellant, further inquiry into the matter regarding the admissibility and genuineness of the alleged Will may become necessary. Since the parties have been relegated before the Land Tribunal, all questions about the genuineness and the legitimacy of their claim can be and will have to be considered by the said Authority in the first place on its own merit and in accordance with law without being influenced by any observation made by the learned Single Judge or the Division Bench of the High Court or for that matter, in the present judgment.12. At the cost of repetition we clarify that the Land Tribunal must examine all the relevant facts necessary for full, complete and effectual adjudication of the claim between the parties keeping in mind the settled legal position in respect of the relevant provisions of the said Act.