1. This second appeal by the plaintiffs is filed challenging concurrent findings recorded by Courts below, assailing the judgment and decree dated
18.07.2014 passed in R.A.No.102/2013 on the file of Fast Track Court, Hunsur, dismissing the appeal and thereby confirming the judgment and decree
dated 16.01.2013 passed by the Additional Senior Civil Judge and JMFC, Hunsur, sitting at Periyapatna in O.S.No.13/2011.
2. Heard Shri. Ashok B. Patil, learned advocate for the appellants and Shri P.M.Siddamallappa, learned advocate for the respondents.
3. For the sake of convenience, parties shall be referred to as per their status before the Trial Court.
4. Briefly stated the facts of the case are, plaintiffs, M.Asadulla Khan and his brother M.Noorulla Hasan Khan brought the instant suit contending
inter alia that agricultural land measuring 9 acres 35 guntas with 10 guntas of kharab land bearing Survey No.10 situated at Harve Mallarajapatna
village, Piriyapatna Taluk was purchased by their father Mohammed Khan on 10.06.1965. During his life time, Mohammed Khan had executed a
registered lease deed on 24.02.1972 in favour of first defendant, Lakshmipathi Raju and handed it over to him. Mohammed Khan died on 17.04.1975.
Lakshmipathi Raju filed an application for grant of occupancy rights under the provisions of Karnataka Land Reforms Act, 1961. His application was
dismissed on 21.10.1975 and plaintiffs came in possession of the suit land. They approached the revenue authorities to enter their names in the record
of rights. In the meanwhile, defendants No.2 and 3 attempted to interfere with their possession over the suit land on the premise that they had
purchased the land. Revenue records obtained by plaintiffs revealed that names of defendants No.2 and 3 were entered in the record of rights on the
strength of a sale deed dated 08.11.1991. With these averments, plaintiffs made three prayers in the suit. Firstly, for a declaration of their title over the
suit land. Secondly, for a declaration that sale deed dated 8.11.1991 executed by Lakshmipathi Raju in favour of defendants No.2 and 3 is null and
void. Thirdly, for permanent injunction and in the alternative, for possession of the suit land.
5. The tenant, Lakshmipathiraju (first defendant) remained ex-parte. Defendants No.2 to 4 filed their written statement contending inter alia that
Mohammed Khan had executed a lease deed in favour of Lakshmipathiraju on 24.02.1972 and the same was duly registered. After the advent of
Karnataka Land Reforms Act, occupancy rights of suit land have been granted in favour of Lakshmipathi Raju on 15.05.1975 by the Land Tribunal.
Thereafter, he has sold the land in favour of defendants No.2 and 3 and put them in possession of the land and their names have been entered in the
revenue records. Thus, in substance, the purchasers (defendants No.2 and 3) set up their title and possession over the suit land.
6. Based on the pleadings, trial Court framed six issues. The first and the third issues are crucial. The first issue is, whether plaintiffs prove that they
are the absolute owners in lawful possession of the suit property and the third issue is, whether defendants prove that first defendant became the
absolute owner of the suit property, as per Land Tribunal’s order dated 15.05.1975.
7. During the trial, on behalf of the plaintiffs, second plaintiff, Noorulla Hassan Khan was examined as P.W.1. and exhibits P1 to P12 marked. On
behalf of the defendants, second defendant Rajashekhara was examined as D.W.1. and exhibits D1 to D26 marked.
8. Trial Court answered issues No.1, 2, 5 and 6 in the negative, issues No.3 and 4 in the affirmative and dismissed the suit.
9. On appeal by the plaintiffs, the first appellate Court framed two points for its consideration. The first point is, whether plaintiffs proved that they
were the owners in possession of suit land. The second point is, whether trial Court’s judgment required any interference.
10. On re-appreciation of evidence, the first appellate Court answered both points in the negative and dismissed the appeal confirming the judgment
and decree of trial Court. The plaintiffs are before this Court in this second appeal.
11. Shri Ashok B.Patil, learned advocate for the appellant principally contended that the plaintiffs’ father Mohammed Khan died on 17.04.1975
and admittedly, the Land Tribunal has passed the order after his death. Therefore, the order passed by the Land Tribunal against a dead person is
nullity in the eye of law. Consequently, no rights could accrue in favour of the tenant and subsequent purchasers.
12. Shri P.M. Siddamallappa, learned advocate for the respondents supporting the impugned judgment, argued that, admittedly, plaintiffs have not
produced the crucial document, namely the dismissal order dated 21.10.1975 passed by the Land Tribunal, as claimed by them. On the other hand,
defendants have produced exhibit-D4, the order dated 15.05.1975 passed by the Land Tribunal, Periyapatna whereunder occupancy rights have been
granted in favour of the tenant. Further, the plaintiffs have not challenged the said order in the appropriate forum and it has attained finality. He urged
that a litigant coming to Court must specifically aver and prove his case, whereas plaintiffs have approached the Court with uncertain facts and
therefore, they are not entitled for any relief.
13. I have carefully considered the submissions made by learned Advocates appearing for the parties and perused the records.
14. Plaintiffs brought the suit on the specific premise that tenant’s application was dismissed by the Land Tribunal on 21.10.1975. No documentary
evidence is placed on record by the plaintiffs in this behalf. On the other hand, defendants have produced exhibit D4, the order passed by the Land
Tribunal on 15.05.1975 in proceedings bearing LRF No.17/75-76. The first appellate Court has recorded that the tenant has remitted the premium
amount to the Government. Thereafter, he has sold the land to defendants No.2 and 3 on 08.11.1991. Exhibit D10 is the record of right for the years
1980-81 to 1984-85 wherein the first defendant is shown as the tenant. In column 9, where the name of occupant is required to be recorded, it is
mentioned as ‘Government’. There is also a reference of Land Tribunal proceedings in the record of rights. These aspects establish that the
land was a tenanted land and stood vested with the Government. Exhibit D11 is the record of right for the period 1985-86 to 1989-90 in which name of
first defendant is recorded in column 9. The mutation register number MR 20/89-90 is also recorded in the said record of rights. Thus, this document
evidences that the occupancy rights were granted in favour of first defendant Lakshmipathi Raju. Exhibit D12 is the record of rights for the years
1990-91 to 1994-95. It records sale of land in favour of defendants No.2 and 3. Exhibit D13 is the record of right for the years 1995-96 to 1999-2000.
Exhibits D14, D15 and D16 are records of rights for the years 2001-02, 2002-03 and 2004-05, respectively. In exhibit D16, name of third
defandant’s son (fourth defendant) is also reflecting as occupant of 20 guntas of land as per MR 25/2004-05. Exhibits D17 to D22 are records of
right for the period from 2005-06 to 2010-11 wherein names of defendants are recorded in column No.9 which establishes that they are in occupation
of suit land.
15. Indubitably, plaintiffs went to the Court contending that Land Tribunal dismissed Lakshmipathi Raju’s application on 21.10.1975, but the said
order has not surfaced. According to the plaintiffs, the record of proceedings were not available as per the endorsement dated 21.10.1975, issued by
the Tahasildar of Piriyapatna. But, significantly, defendants have produced an order dated 15.05.1975 passed by the Land Tribunal granting occupancy
rights in favour of Lakshmipathi Raju. Second plaintiff, P.W.1, when confronted with the said sale deed, though denied the suggestion with regard to
its execution, has admitted that plaintiffs also produced a copy of the said sale deed in the proceedings. This admission establishes that plaintiffs had
knowledge of the execution of the sale deed and the same is fortified by their prayer to declare the said sale deed as void.
16. Shri Ashok Patil strenuously contended that the order passed by the Land Tribunal against a dead person is void, by placing reliance on Jingra
Moolya and Another Vs. Balakrishna Alias Subramanya Bhat (1995)6 Kar.L.J. 449. His argument must fail on two important legal principles. Firstly,
for want of pleadings. Plaintiffs went to the Court with an assertion that Land Tribunal had dismissed Lakshmipathi Raju’s application for grant of
occupancy rights on 21.10.1975, whereas defendants’ specific case is, occupancy rights were granted on 15.05.1975. Plaintiffs never pleaded that
order against a dead person is a nullity before the Courts below. It is for the first time before this Court, plaintiffs have sought to urge the said
contention on the premise that it is purely a legal ground and can be urged at any time.
17. The importance of pleadings is well-settled. It may be worth noting the following passage from Mohan Rawale Vs. Damodar Tatyaba (1994)2
SCC 392 wherein Supreme of India has held thus:
“11. Referring to the importance of pleadings a learned author says:
“Pleadings do not only define the issues between the parties for the final decision of the court at the trial, they manifest and exert their importance
throughout the whole process of the litigation. … They show on their face whether a reasonable cause of action or defence is disclosed. They provide
a guide for the proper mode of trial and particularly for the trial of preliminary issues of law or fact. They demonstrate upon which party the burden of
proof lies, and who has the right to open the case. They act as a measure for comparing the evidence of a party with the case which he has pleaded.
They determine the range of the admissible evidence which the parties should be prepared to adduce at the trial. They delimit the relief which the
court can award. …â€
(emphasis supplied)
18. The second legal principle is with regard to opening and vacating a judgment. Land Tribunal is the authority vested with the jurisdiction under the
Land Reforms Act to grant occupancy rights. It is settled that a mere error in exercise of jurisdiction does not vitiate the legality of proceedings.
19. Admittedly, plaintiffs have not challenged Land Tribunal’s order dated 15.05.1975 and thus chosen to waive their right or acquiesced. The
Supreme Court of India in Budhia Swain Vs. Gopinath Deb (1999) 4 SCC 396 quoting Corpus Juris Secundum(Vol.XIX), with regard to opening and
vacating a judgment, has held that a distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former
strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A
mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the
manner known to law.
20. In Pankaj Bhargava and another Vs. Mohinder Nath and another (1991)1 SCC 556 explaining the decision in London & Clydeside Estates Ltd.
Vs. Aberdeen D.C, RSA No.1474/2014 the principle to be applied with regard to void and voidable orders has been explained by the Supreme Court
of India.
21. In the said case, the landlord therein and the tenant had obtained permission for a ‘limited tenancy’ before the Rent Controller for five
years. Landlord commenced proceedings for redelivery. Tenant resisted the proceedings on the ground that permission obtained under Section 21 of
the Delhi Rent Control Act was vitiated by fraud.
22. Justice M.N.Venkatachaliah (as he then was) speaking for the Bench held that doctrine of collateral challenge will not apply to a decision which is
valid ex-hypothesi and which has some presumptive existence, validity and effect in law. Such a decision can be invalidated by the right person in right
proceedings brought at the right time. It is only a nullity stemming from lack of inherent jurisdiction or a proceeding that wears the band of invalidity on
its forehead that might afford a defence even against enforcement.
23. The variety of cases from one end of the spectrum to the other has been stated in London & Clydeside and it has been succinctly explained by the
Supreme Court of India thus:
“â€22. The expressions ‘void’, ‘voidable’, ‘nullity’, as observed by the Lord Chancellor in London & Clydeside Estates Ltd. v.
Aberdeen D.C. [(1980) 1 WLR 182 : (1979) 3 All ER 876] may be misleading insofar as they are “supposed to present a court with the necessity
of fitting a particular case into one or other of mutually exclusive and starkly contrasted compartments, compartments which in some cases (e.g.
‘void’ and ‘voidable’) are borrowed from the language of contract or status, and are not easily fitted to the requirements of administrative
lawâ€. Some observations of the Lord Chancellor are again worth recalling: (All ER p. 883)
“In this appeal we are in the field of the rapidly developing jurisprudence of administrative law, and we are considering the effect of non-
compliance by a statutory authority with the statutory requirements affecting the discharge of one of its functions….â€
“When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest
detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the
light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of
alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another.* At one end of this spectrum there
may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore
what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it
may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own….
But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court
for declaration of his rights….â€
*(Emphasis in original) (underlining by me)
24. In addition, plaintiffs have miserably failed to prove their specific plea that, post dismissal of first defendant’s application by the Land Tribunal,
they were put in possession of the suit property. To compound the ambiguity, they have prayed for possession of the suit property.
25. In substance, plaintiffs have failed to aver and prove their case and as rightly held by the learned trial Judge, they have embarked upon a
‘chance litigation’.
26. In view of the above discussion, no substantial question of law arises for consideration of this Court.
27. Resultantly, this appeal must fail and it is accordingly dismissed. No costs.
