1. Appellants are the Petitioners in the writ petition being aggrieved by the order dated 9-6-2006 made in W.P. No. 4523/2002 passed by the learned Single Judge dismissing the writ petition filed by the Petitioners confirming the order dated 16-1-2001 passed by the Karnataka Appellate Tribunal in Appeal No. 158/1999 have preferred this writ appeal.
2. The State Government filed a writ petition before this Court challenging the order dated 16-1-2001 passed by the Karnataka Appellate Tribunal in Appeal No. 158/1999 wherein the Appellate Tribunal set aside the order dated 16-2-1999 passed by the Deputy Commissioner, Chikkamagalur and directed to restore the katha to an extent of 162.02 acres of land in favour of the Respondents, interalia contending that the order passed by the Appellate Tribunal is contrary to law.
3. The case of the Petitioners is that the Respondents had made an application on 4-4-1991 for restoration of katha in respect of land bearing Sy. No. 2, measuring 162 acres and 02 guntas situated at Melagiri village Chikmagalur Taluk contending that for nonpayment of the land revenue, the aforesaid land was forfeited by the State Government on 28-3-1935. However, the Respondents and their mother continued to be in possession and enjoyment of the said land and they are ready to pay the arrears of land revenue and other charges and to restore katha in their favour. The Deputy Commissioner after considering the original records found that the land in question was not forfeited by the State Government for nonpayment of the land revenue, on the other hand, the mother of the Respondents surrendered the land measuring 214 acres and 30 guntas in favour of the State Government by way of Rajiname, as she was unable to cultivate the said land and to pay the land revenue. Since, the mother of the Respondents on her own surrendered the land to the State Government on 28-3-1935, the mutation entry has been changed in the name of the State Government and there is no provision for restoring katha in their favour. Accordingly an endorsement dated 8-5-1992 was issued to Respondents. The Respondents being aggrieved by the said endorsement preferred an appeal No. 264/1992 before the Appellate Tribunal. The Appellate Tribunal by its order dated 27-4-1994 allowed the appeal setting aside the endorsement dated 8-5-1992 and remanded the matter for fresh consideration with a direction to give an opportunity to the Respondents before passing any order. After remand, the Deputy Commissioner issued notice to the Respondents and after giving necessary opportunity to have their say in the matter and also after getting the report from the Tahsildar and the Assistant Commissioner, held that the land in question was not forfeited by the State Government for arrears of land revenue, but, the mother of the Respondents surrendered 214 acres and 30 guntas of land in favour of the State Government on 28-3-1935 by way of Rajiname. Hence, the application for restoration of katha cannot be granted, accordingly rejected the same on 6-8-1996. Being aggrieved by the said order, the Respondents once again approached the Appellate Tribunal in Appeal 481/1996. The Appellate Tribunal once again remanded the matter for fresh enquiry with a direction to find out whether the land in question was surrendered to the State Government or forfeited for nonpayment of land revenue. After remand, the Deputy Commissioner once again conducted an enquiry with reference to the old records and passed a detailed order on 16-2-1999, stating that the land in question is not forfeited by the State Government and the Respondents'' mother on her own surrendered the land to the State Government by way of Rajiname. Hence, rejected their application for restoration of the katha on 16-2-1999. Being aggrieved by the said order the Respondents once again approached the Appellate Tribunal in Appeal No. 158/1999. The Appellate Tribunal without critically examining the original records, solely on the ground of stray entry made during the year 1940-41 came to the conclusion that the land in question was forfeited by the State Government for arrears of the land revenue without considering the entry made in the RTC in the proceedings No. 53/34-35 allowed the appeal and set aside the order passed by the Deputy Commissioner.
4. The Respondents have admitted that their mother surrendered the land in dispute on 28-3-1935 and mutation entry has been made immediately thereafter in respect of 214 acres 30 guntas of land. However, the Appellate Tribunal taking into consideration the entry made in M.R. No. 1/40-41 came to the conclusion that the land has been forfeited by the State Government for arrears of the land revenue. The Appellate Tribunal without considering the relevant records came to the conclusion that the land in question was forfeited by the State Government for arrears of land revenue in the year 1935. It is further observed that even if the land is surrendered by the mother of the Respondents, the Respondents are entitled for restoration of katha and also held that the Respondents have been in possession of 162 acres and 2 guntas of land and the said land has not been granted by the State Government to any person. Accordingly, by its order dated 16-1-2001 allowed the appeal setting aside the order dated 16-2-1999 passed by the Deputy Commissioner directing the Deputy Commissioner to restore the katha in respect of land bearing Sy. No. 2, to the extent of 162 acres and 2 guntas of land in favour of Respondents after collecting the entire arrears of land revenue and other dues. Being aggrieved by the said order, the Petitioners filed W.P. No. 4523/2002 contending that the mother of Respondents has surrendered the land by way of Rajiname to an extent of 214 acres 30 guntas of land. Out of the said land, 20 acres is kharab land and 35 acres of land has been granted in favour of third party and the total extent of the land available is 162 .02 acres and the said land has not been cultivated for the last 65 years. The said land is hilly and not suitable for coffee cultivation and it is very close to the Western Ghat and there is no approach road also. Further contended that when once the land has been surrendered to the State Government by Rajiname, the question of applying Clause 52 of the Mysore Land Revenue Code or Rule 119 of land Revenue Rules will not arise. learned Counsel also submitted that there is an inordinate delay in filing the application.
5. It is also the case of the Appellants that the learned Single Judge without considering the contentions raised by the Appellants, only relying upon the finding given by the Appellate Authority came to the conclusion that the Respondents have been in possession and cultivating the said land. Further, the Government has not granted the said land to any person. The learned Single Judge has accepted the finding with regard to the entry made during the year 1940-41 to show that the land has been alienated for nonpayment of land revenue without, considering the earlier entry made in the year 1934-35 in No. 53/34-35 wherein it was clearly mentioned that the land has been surrendered by way of Rajiname to the State Government. Further, if the Respondents have been in possession of the land, the question of granting 35 acres of the land to the third party does not arise. The learned Single Judge without looking into the original records, accepted the finding given by the Appellate Authority and dismissed the writ petition confirming the order passed by the Appellate Tribunal. Being aggrieved by the order impugned, the Appellants have preferred this appeal.
6. Sri. K. Krishna, learned Additional Government Advocate appearing for the Appellants contended that the total extent of the land measuring 214 acres 30 guntas was surrendered by Miss. D.M. Saldhana in the year 1934-35 and it was entered in the RTC No. 53/34-35 as surrendered to the State Government by way of Rajiname. Only after the surrender, the Government name has been entered in the revenue records. From the year 1934-35 onwards, the Respondents are not in possession of the said land. After a long lapse of 64 years, an application has been made on 4-4-1991 for restoration of katha as if they are in possession of the said land. The Deputy Commissioner after verifying the records issued an endorsement on 8-5-1992. The said endorsement has been questioned before the Appellate Tribunal, the Appellate Tribunal remanded the matter twice. After remand, the records have been called for from the Revenue Inspector, Tahsildar and the Assistant Commissioner. After verifying the records, it was noticed that the total extent of the land that was in possession of the father of the Respondents was 263.17 acres. After the death of the father of the Respondents, the mother of the Respondents surrendered the land to an extent of 214.30 acres, out of which, 20 acres of land is kharab land and 35 acres has been granted in favour of the third party and the total land available is only 162.03 acres. Immediately after the surrender, the Government name has been entered in RTC No. 53/34-35 on 28-3-1935. Hence, the question of forfeiting the land, which was already surrendered to the State Government in the year 1940, does not arise. An entry made in the year 1940-41 does not pertain to the land in question. The learned Counsel for the Appellants further submits that the records disclose that the Respondents are not in possession of the said land and the land is hilly; no approach road; and the land is situated adjacent to the Western Ghat. Without considering these aspects, the learned Single Judge dismissed the writ petition and hence, sought for allowing the appeal by setting aside the order passed by the learned Single Judge as well as the Appellate Tribunal.
7. On the other hand, Sri. B.M. Krishna Bhat, learned Counsel appearing for the Respondents contended that there is no infirmity or irregularity in the order passed by the learned Single Judge confirming the order passed by the Appellate Tribunal. The Deputy Commissioner without considering the relevant records passed an order holding that the land in question was surrendered by way of Rajiname by the mother of Respondents. Applying the provisions of Section 54 of the Mysore Land Revenue Code or Rule 119 of Land Revenue Rules is erroneous and sought for dismissal of the appeal.
8. We have carefully gone through the order impugned and considered the arguments addressed by the learned Counsel for the parties and critically examined the original records made available to us.
9. As per the records, the total extent of the land surrendered to the State Government by the mother of the Respondents is 214.30 acres. The RTC entry No. 53/34-35 dated 28-3-1935 discloses that the said land was surrendered to the State Government and it was mentioned as "BEELIGE" in the RTC entries. The application for the restoration of the katha has been made on 4-4-1991 i.e. after lapse of 64 years contending that they were in possession of the said land. The Appellate Tribunal relied upon the entry made INF 156/38-39, wherein it was mentioned that the property has been auctioned for arrears of land revenue So far as that entry is concerned, the Survey number and also extent of the land has not been mentioned. As contended by the Additional Government Advocate, when once the land has been surrendered to the State Government by way of Rajiname and entries have been made in the RTC, the question of forfeiting the said land for arrears of land revenue does not arise as the said land has already been vested with the State Government. The Appellate Tribunal relying upon some stray entry came to the conclusion that land has been forfeited by the State Government for arrears of land revenue without considering the RTC entry made in Entry No. 53/34-35. The further finding of the Appellate Tribunal that even though the Respondents themselves have surrendered the land, they are entitled for the restoration of the katha is contrary to records. When a person is not in a position to cultivate the said land and not able to pay the land revenue and surrendered the said land, the question of restoring katha does not arise. The katha will be restored only if the person is in possession of the said land. In the instant case, no document has been produced either before the Deputy Commissioner or before the Appellate Tribunal to show that the Respondents are in possession of the said land. The records submitted by the Revenue Officer clearly disclose that it is Coffee Banjaru, the land has not been cultivated; it is very closed to the Western Ghat; the land is hilly and not suitable for the coffee cultivation. Since the land in question was surrendered to the State Government application of Section 54 of the Mysore Land Revenue Code or Rule 119 of the Land Revenue Rules does not arise. If the land is forfeited by the State Government for nonpayment of land revenue, then only the aforesaid provision can be made applicable. The judgments relied upon by Sri. B.M. Krishna Bhat, reported in
10. In the absence of any records, the Appellate Authority should not have come to the conclusion that the Respondents are in possession and cultivating the said land. The reasoning of the Appellate Authority is contrary to the facts. The learned Single Judge accepted the finding of the Appellate Authority and dismissed the writ petition filed by the Appellants. Hence, the order passed by the learned Single Judge confirming the order passed by the Appellate Tribunal cannot be sustained. It is for the Deputy Commissioner to examine the entire records and to give a specific finding whether the land in question was surrendered by the mother of the Respondents or the Government has forfeited the land for nonpayment of the land revenue or the Government has purchased the land in the auction. As could be seen from the records, the Deputy Commissioner has not given any specific finding in this regard. Hence, we are of the opinion that the Deputy Commissioner has to reexamine the matter and to give specific finding in this regard. Accordingly, we pass the following:
ORDER
11. The appeal is allowed by setting aside the order dated 9-2-2006 passed by the learned Single Judge in W.P. No. 4523/2009 and the order dated 16-1-2001 passed by the Appellate Tribunal and the matter is remanded to the Deputy Commissioner to reconsider afresh and give a specific finding whether the land in question was surrendered by the mother of the Respondents; or whether the land is forfeited by the State Government for nonpayment of land revenue; or whether the Respondents are in possession of the land and cultivating the same, as expeditiously as possible and to pass appropriate orders in accordance with law.
