Kanna Timma Kanaji Madiwal (D) Thr. Lr. vs Ramachandra Timmaya Hegde (D) Thr. Lrs .

2. The relationship and respective position of the parties involved in the matter may be noticed at the outset and as follows:

3.1. It is the case of the appellant Kanna that due to the ill-health of his uncle Gutya, the land in question was being cultivated by his father Timma (brother of Gutya); and Timma was paying the rents to the respondents on behalf of Gutya, whose health kept on deteriorating.

3.2. It is further the case of the appellant Kanna that on 13.02.1960, Gutya executed a Will and got it registered, bequeathing all his properties in favour of his brother Timma (father of the appellant). Gutya expired on 19.06.1963. After the demise of Gutya, the Tahsildar conducted an enquiry and, on 08.07.1963, effected mutation entry No. 1080 in the name of Timma in 2 Kanna son of Timma having expired during this litigation, is now represented by his legal representatives but, looking to the subject-matter and the issues involved, the discussion herein is with reference to the original appellant Kanna.

3.3. Later on, the said Smt. Gauri filed her objections to the mutation entries made in favour of Timma but the said objections were overruled. However, the Assistant Commissioner, in appeal, remanded the matter for consideration afresh and, after such remand, the authority concerned, by its order dated 18.05.1965, ordered that the mutation entry of the land in question be made in the name of Smt. Gauri.

3.5.2. Assailing the decree aforesaid, appeals were preferred in the Court of District Judge, Karwar by the respondents-landlords and Smt. Gauri 6. The First Appellate Court reversed the decree of the Trial Court and remanded the matter for reconsideration of the question as to who was the tenant after the death of Gutya. This order of remand was challenged by Timma before the High Court of Karnataka7. The High Court, by its order dated 08.03.1977, disapproved the order of remand and restored the matter to the file of First Appellate Court for disposal on merits, after observing that the question involved was not of ‘tenancy’ but the one relating to the ‘succession of Gutya’s tenancy’.

The matter so transferred by the High Court was registered before the Appellate Authority as an appeal against the order of Land Tribunal13. 3.6.3. By its order dated 18.07.1988, the Appellate Authority dismissed the said appeal of the appellant for non-prosecution. The appellant sought restoration of the appeal and recall of the order of default dismissal by moving an application under Rule 9 of the Karnataka Land Reforms Rules. The application so moved by the appellant was dismissed by the Appellate Authority on 26.12.1988, for want of sufficient reasons for absence of advocate on the date of hearing as also for want of an application for condonation of delay of one day in filing the application for recall. 3.6.4. Being aggrieved by such dismissal of the appeal and the application for restoration, the appellant preferred a revision petition14 before the High Court of Karnataka. The High Court proceeded to dismiss the petition so filed by the appellant by its impugned order dated 08.08.2001, while rejecting the claim of appellant on merits and while observing, inter alia, that: (a) Gutya was the original tenant of the land in question before his demise in the year 1963;

However, the narration about the litigations between the parties would remain incomplete if another proceeding in the form of a civil suit filed by the present respondent No. 1 is not referred18. After passing of the aforesaid order dated 08.08.2001 by the High Court, a civil suit was filed by the respondent No. 1, seeking perpetual injunction against the appellant and his brothers. An application seeking temporary injunction was also filed therein, being IA No. 1. The Trial Court dismissed the said application for temporary injunction by its order dated 17.04.2003 while holding that the defendants (appellant and others) were in possession of the suit property.

17. The upshot of the discussion foregoing is that the impugned orders cannot be sustained and it is beyond the pale of doubt that the application filed by the appellant by Timma for grant of occupancy rights in respect of the land in question deserves to be allowed.

18. Accordingly, and in view of the above, the impugned judgment and orders dated 08.08.2001 and 06.12.2004 passed by the High Court of Karnataka in LRRP No. 1 of 1996 and Review Petition No. 484 of 2002 respectively as also the impugned orders dated 18.07.1988 and 26.12.1998 passed by the Land Reforms Appellate Authority and dated 22.09.1981 passed by the Land Tribunal are set aside; and the application in question, as filed by Timma for grant of occupancy rights in respect of the land in question is allowed. The Land Tribunal shall pass necessary formal orders for grant of occupancy rights in favour of the present appellants, who have acquired such rights as being successors of the rightful legatee of the original tenant. 27 18.1. The appeals are allowed with the directions and requirements aforesaid. No costs.