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IN THE HIGH COURT OF

KALABURAGI BENCH

ON THE 11 TH DAY OF MARCH, 2015

BEFORE

THE HON’BLE MR. JUSTICE RAVI MALIMATH

Writ Petition No.41784/2004 (LR)

BETWEEN:

Sri Madivalayya S/o Sharabayya Gaddagimath, Since deceased by his L.Rs.

1. Smt. Shivubai W/o Late Madivalayya Gaddagimath, Age: 62 years, Occ: House hold and Agriculture, R/o Kalkeri, Tq. Sindgi, District: .

2. Smt. Mahadevi D/o Madivalayya Gaddagimath, Age: 37 years, Occ: Govt. Service, District Hospital, Bijapur.

3. Sri Kantayya S/o Madivalayya 2

Gaddagimath, Age: 34 years, R/o Kalkeri, Tq: Sindgi, District: Bijapur.

4. Sri Sharabayya S/o Madivalayya Gaddagimath, Age: 31 years, Occ: Agriculture, Rest – do -

5. Smt. Arundhati D/o Madivalayya Gaddagimath, Age: 28 years, Occ: Household and Agriculture, Rest – do –

6. Smt. Shashikala D/o Madivalayya Gaddagimath, Age: 25 years, Rest – do - ... Petitioners

(By Sri G.G. Chagashetty, Advocate)

AND:

1. State of Karnataka Represented by its Secretary, Revenue Dept. M.S. Building, 3

Bangalore – 1.

2. The Land Tribunal Sindgi, by its Secretary, the Tahsildar, Sindgi, Tq. Sindgi, District: Bijapur.

3. Sri Guruswamy S/o Kasayya Gaddagimath, Age: Major, R/o Kalkeri, Tq: Sindgi, District: Bijapur.

4. Sri Kallayya S/o Sharabayya Gaddagimath, Major, R/o Kalkeri, Tq. Sindgi, Dist: Bijapur. ... Respondents (By Sri Shivakumar Tengli AGA for R1 & R2, Sri Sanjay A. Patil, Advocate for R3, R4 is Served)

This Writ Petition is filed under Articles 226 and 227 of the Constitution of , praying to direct the Land Tribunal to grant occupancy rights in respect of the land bearing Sy.No.292, measuring 12A 27G of village Alagur, Taluk Sindgi, District Bijapur in favour of the petitioner.

This petition coming on for hearing this day, the Court made the following: 4

ORDER

The case of the petitioners is that the land bearing Sy.No.292 measuring 12 acres 27 guntas situated at Alagur village, taluka, Bijapur district is an inam land belonging to Sree

Madivaleshwar Temple from the time of their ancestors. On coming into force of Certain Inam Abolition Act, they filed an application in Form No.1 along with Guruswamy namely the respondent No.3 and Sri Kallayya, respondent No.4 seeking for registration of occupancy rights in respect of the said land. The

Tribunal granted the lands in favour of respondent No.3 and rejected the claim of respondent No.4. Aggrieved by the same, the respondent No.4 challenged the same by filing

W.P.No.36687/1992. The Writ Petition was allowed and the matter was remanded for a fresh enquiry. Thereafter the Tribunal has passed the impugned order granting occupancy rights to the 3 rd respondent. Aggrieved by the same, the present petition is filed.

2. Sri G.G.Chagashetty, learned counsel for petitioner contends that the impugned order is bad in law and liable to be set 5

aside. The Tribunal committed an error on relying on the mutation entries. That the properties were never handed over to the tenants as noted by the Tribunal. Hence, it is pleaded that the order be set aside.

3. Sri Sanjay Patil, learned counsel for contesting respondent No.3 defends the impugned order. He contends that the revenue records have a presumptive value. Hence it is to be presumed that the tenants are in occupation of the same.

4. Heard learned counsels and examined the records.

5. The Tribunal while considering the case before it, relied on the deposition of one Kallayya who has stated that the land was given to respondent No.3 for cultivation. That based on such a statement, mutation entries have been effected showing the name of respondent No.3. Therefore, the Land Tribunal was of the view that since Kallayya himself has allowed the respondent No.3 into possession and cultivation of the land, he is entitled for occupancy rights. 6

6. The records of the Land Tribunal was examined in detail. Learned Government Advocate submits that there is no statement by Kallayya to the said effect. On examining the records,

I’ am of the view that in the absence of any such statement by

Kallayya, the very premises of the mutation entry being effected in favour of respondent No.3 would not arise. That in the absence of said statement the mutation entry standing in the name of respondent No.3 cannot be accepted at all. All the mutation entries has to be considered as void. The mutation entry is based on the statement of Kallayya. When the records do not disclose any statement given by Kallayya before any forum whatsoever, the question of making the mutation in the name of respondent No.3 does not arise. The Tribunal relied on the non existent statement of Kallayya to grant occupancy rights to the respondent No.3. The findings of the Tribunal are not supported by the records. The records are opposite to the findings of the Tribunal. Therefore, the order is unsustainable. It is passed on imaginative facts and not based on records. 7

7. Consequently the petition is allowed. The order dated

5.2.2004 in No. KCI:SR:12-14:90-91 passed by the Land Tribunal,

Sindagi is quashed. Rule made absolute.

Sd/- JUDGE

*MK