- (1.) Application for substitution is allowed. This is a Special Leave Petition for setting aside the judgment dated 29.6.2004 of the Division Bench of the Karnataka High Court, Bangalore whereby the writ appeal preferred by the Appellant (petitioner herein) was dismissed and the order passed by the learned Single Judge was affirmed.
(2.) The Petitioner was the third Respondent in Writ Petition No. 28821 of 1998 preferred by the first Respondent herein. The Writ Petition was preferred by the first Respondent after about 21 years to set aside the order dated 25.10.1975 and 10.8.1977 passed by the Land Tribunal. Somwarpet, in so far as it granted occupancy rights in regard to Sy. Nos. 166 (8A. 60 cents) and 164 (2A. 80 cents) of Attur Nallar Village, Suntikoppa Talum. Somwarpet. The writ petition was allowed in part, quashing the order dated 10.8.1977 passed by the Land Tribunal, Somwarpet in so far as Sy. No. 166 (8A. 60 cents).
(3.) Sy. No. 166 of Athur Nallur village measuring 8 acres 60 cents originally belonged to one Subbaiah, grand father of first Respondent and 12th Respondent. The said Subbaiah had two sons, namely, K.S. Ganapathi and K.S. Appachu. The first Respondent is the son of K.S. Ganapathi and the 12th Respondent - K.A. Kuttayya, is the son of K.S. Appachu. According to first Respondent -writ Petitioner, the said Subbaiah executed a gift deed in respect of said Sy. No. 166 and some other survey numbers in favour of his son K.S. Ganapathi. However, as K.S. Appachu, the other brother did not accept the validity of the said gift deed, there were negotiations between the two brothers K.S. Ganapathi and K.S. Appachu, and by way of a settlement, an agreement of sale was executed by K.S. Appachu in favour of K.S. Ganapathi on 12.12.1968 with regard to half portion of the wet lands (Sy. No. 166 and other lands) and half that of Bane lands and the land surrounding the Plaintiff's house (as described in Schedule A, B and C respectively). On the death of K.S. Ganapathi, his widow K. Devaki and his two sons - (first Respondent - K.G. Uthaya and his brother K.G. Chengappa) filed a suit vide O.S. No. 17/1976 before the Civil Judge, Coorg, Mercara agaist K.S. Appachu and his son, (the 12th Respondent herein) for specific performance of the said agreement of sale. The suit was decreed after contest by judgment and decree dated 16.7.1977 directing the Defendants in the suit, to execute the sale deed with respect to the suit properties in favour of the Plaintiffs, including the Petitioner herein, in terms of the sale agreement. During the course of judgment, the court took note of the fact that a tenancy claim was pending with regard to the 'A' Schedule lands. The decree stated thus regarding the Schedule -A properties; which included Sy. No. 166: If it is found that the Defendants are not in possession of 'A' schedule land at the time of delivery of possession, then Plaintiffs are entitled to get constructive or symbolic possession or rights to get compensation amount from the Government under the provisions of the Land Reforms Act. without prejudice to the right of the Plaintiffs to disprove the question of tenancy before the Land Tribunal or elsewhere according to law.;