Dinesh Maheshwari, J. - (1.) In the foreground, these appeals are in challenge to the judgment and orders dated 08.08.2001 and 06.12.2004, passed by the High Court of Karnataka at Bangalore in L.R.R.P. No. 1 of 1996 and Review Petition No. 484 of 2002 respectively, arising out of an application filed by the father of the appellant for grant of occupancy rights in respect of 4 parcels of agricultural land situated at Bilagi Village, Siddapur Taluk, Uttara Kannada District, Karnataka ['the land in question']. However, in the background is a labyrinth of litigation/s, spreading well over half a century, as briefly summarised infra.
(2.) The relationship and respective position of the parties involved in the matter may be noticed at the outset and as follows: 2.1. One Kanna Kulage of the village aforesaid had three sons namely, Gutya, Timma and Ganappa. The appellant herein, Kanna [2] , is son of Timma and thus, nephew of Gutya. It is not in dispute that Ganappa had left the family and nothing in his regard is now involved in this litigation. Gutya had married Gauri but it is the case of the appellant that Gutya's wife Smt. Gauri left him; remarried one Jatya; and begot two children from her second marriage with Jatya [3] . The land in question originally belonged to the respondents herein but admittedly, Gutya, paternal uncle of the appellant, was inducted as tenant therein.
(3.) The relevant background aspects of the matter could now be noticed, in brief, 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 relation to the land in question that had been in cultivatory possession of Timma. 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. 3.4. Having thus succeeded in getting the land in question mutated in her favour, the said Smt. Gauri purportedly surrendered the tenancy rights in favour of the respondents herein on 16.06.1965. 3.5. In the wake of the developments aforesaid, Timma filed a civil suit [4] for declaration of possessory title and injunction against Smt. Gauri with reference to the Will of his brother Gutya, while also joining his other brother Ganappa and the present respondents as defendants. In her written statement, Smt. Gauri denied the execution of Will by Gutya and validity thereof; and also denied that Timma was in possession of the land in question. The respondents-landlords denied that Timma could have derived any right by virtue of the Will executed by Gutya. 3.5.1. On 30.06.1969, the suit aforesaid was decreed by the Trial Court with the findings, inter alia, that Smt. Gauri left the company of Gutya and contacted marriage with Jatya; that after leaving the company of Gutya and upon her re-marriage, Smt. Gauri was no longer an heir of Gutya and, therefore, she was not entitled to inherit or surrender the tenancy rights of Gutya in the land in question. The Trial Court also held that Timma was in lawful possession of the land in question and the Will dated 13.02.1960 was validly executed by Gutya [5] . 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 Karnataka [7] . 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'. 3.5.3. After remand, the appeal filed by the present respondents against the decree of the Trial Court was transferred to the Court of Civil Judge, Sirsi [8] . Ultimately, the First Appellate Court dismissed the said appeal by way of the judgment and decree dated 18.12.1990 while holding that the Will executed by Gutya in favour of Timma was proved and the same was validity registered. The First Appellate Court also confirmed the findings of the Trial Court that Smt. Gauri had re-married and ceased to be the heir of Gutya. While referring to the provisions contained in sub-section (1) of Section 27 of the Bombay Tenancy and Agricultural Lands Act, 1948, ['the Act of 1948'], the First Appellate Court also observed that the said provision prohibited alienation of leasehold land by a tenant but testamentary succession was not prohibited. [9] 3.5.4. The decree so passed by the First Appellate Court was challenged by the present respondents by way of a second appeal [10] that was considered and dismissed by the High Court on 08.07.1998. The present respondents attempted to challenge the judgment of the High Court in this Court but the petition for Special Leave to Appeal [11] was also dismissed on 26.02.2001. 3.5.5. Hence, the net result of the civil suit aforesaid had been that the findings came to be recorded conclusively that Smt. Gauri was not the heir of Gutya; that Timma was the heir of Gutya; that Gutya had executed the Will in favour of Timma bequeathing his rights in the land in question; and that Timma was in possession of the land in question. These findings attained finality with dismissal of appeals and the petition for Special Leave to Appeal in this Court. 3.6. The other line of proceedings commenced on 08.08.1974 with filing of an application in Form No. 7 under Section 48-A of the Karnataka Land Reforms Act, 1961 ['the Act of 1961'] by Timma for grant of occupancy rights in respect of the land in question before the Land Tribunal, Siddapur [12]. This application was moved by Timma after the decree of the Trial Court in the above-referred civil suit but during the period when the appeal against such decree was pending. During the pendency of application before the Land Tribunal and also the appeal proceedings relating to the aforesaid civil suit, Timma expired and hence, his wife and children were brought on record as his legal representatives. 3.6.1. On 22.09.1981, the Land Tribunal rejected the claim for grant of occupancy rights in respect of the land in question while observing that the appellant (son of Timma) had made a statement of admission that he was not the tenant of the land in question. 3.6.2. The aforesaid order of the Land Tribunal was challenged by the appellant Kanna, son of Timma, before the High Court by filing a writ petition and, inter alia, disputing the purport of the statement alleged to have been made by him before the Land Tribunal. During the pendency of the said writ petition, the Land Reforms Appellate Authority came to be established and hence, the High Court transferred the matter to the said Appellate Authority. The matter so transferred by the High Court was registered before the Appellate Authority as an appeal against the order of Land Tribunal [13] . 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 petition [14] 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; (b) in the application in Form No. 7, Timma failed to plead about the separation of Smt. Gauri from Gutya prior to his demise and, therefore, the alleged disinheritance of Smt. Gauri could not be countenanced, meaning thereby that she remained the legal heir of Gutya; (c) the assignment of interest of tenancy by way of bequeath was barred under Section 21 of the Act of 1961 and, therefore, Timma could not succeed to Gutya's land by virtue of the Will executed in his favour; (d) Gutya and Timma had their respective parcels of land and each of them was cultivating his own parcel; (e) if tenancy was transferred in favour of Timma, it would amount to creation of fresh tenancy, which would be in contravention of the provisions of the Act of 1961; and (f) the appellant had made a statement before the Land Tribunal that he was not a tenant in respect of the land in question. The relevant portion of the order of the High Court reads as under:- ".....the petitioner herein cannot succeed to the tenancy right of the deceased Gutya by virtue of the Will alleged to have been executed by the deceased Gutya in favour of his father Thimma, in the presence of the wife of the deceased Gutya by name Gowri who is the legal heir of the deceased to succeed to the tenancy rights of her deceased husband. Further it is also the case of the petitioner herein that when the deceased Gutya fell ill and the father of the petitioner Thimma began to cultivate the lands in respect of which the deceased Gutya was a tenant, the father of the petitioner had started paying the rent in respect of the said lands to the landlord and which were duly accepted by him. Thus according to the petitioner there was almost a fresh lease created in favour of the father of the petitioner Thimma. But it has to be stated that any tenancy created in contravention of Section -5 of the Karnataka Land Reforms Act would be void and therefore any possession pursuant to such fresh lease would also be unlawful and such person is therefore not entitled to the benefit of section-4 of the KLR Act. Even on the ground also, the father of the petitioner was not entitled to seek the registration of occupancy rights in respect of the lands, of which the deceased Gutya was a tenant. Therefore looking from any angle, neither the petitioner nor his father Thimma could be entitled to seek registration of occupancy rights in respect of the lands, of which the deceased Gutya was a tenant. That apart, the order of the Land Tribunal would clearly indicate that the petitioner herein who gave his statement before the Land Tribunal did not claim tenancy right in respect of the lands, of which the deceased Gutya was a tenant. No doubt it was sought to be contended on behalf of the petitioner that there was no such statement made before the Land Tribunal by the petitioner. But the order of the Land Tribunal would clearly indicate that the petitioner did make such a statement before the Land Tribunal. If the petitioner wanted to establish the fact that the said observation made by the Land Tribunal in its impugned order is factually incorrect, he could have adduced additional evidence before the Land Reforms Appellate Authority. But he did not do so and on the other he allowed the appeal to be dismissed for default. Therefore having given my anxious consideration to the entire matter in issue, I find no merit in this revision petition filed by the petitioner and it is liable to be dismissed." 3.6.5. The appellant attempted to challenge the aforesaid order dated 08.08.2001 in this Court by way of a petition for Special Leave to Appeal [15] but, on 11.03.2002, the same was dismissed as withdrawn with liberty to the appellant to file a review petition before the High Court. The appellant, thereafter, filed a review petition [16] before the High Court with an application for condonation of delay. Even this review petition went through its own meandering course inasmuch as the application for condonation of delay was dismissed by the High Court on 01.08.2003 for want of satisfactory reasons for not approaching the Court within reasonable time. Against this order dated 01.08.2003, the appellant again approached this Court by way of another petition for Special Leave to Appeal [17] that was allowed on 09.07.2004; this Court condoned the delay and remitted the matter to High Court for disposal on merits. 3.6.6. Ultimately, the said review petition and an application therein for production of additional documents were considered on merits and the High Court proceeded to dismiss the same by its order dated 06.12.2004 while essentially reiterating its findings, as occurring in the order dated 08.08.2001, and while observing that there was nothing of any error apparent on the face of record. The High Court observed, inter alia, as under:- "9. In the instant case, I find that there is no such error apparent on the face of the record and the present review Petition filed by the Petitioner is only an attempt to reargue the matter, which is not permissible in review jurisdiction......In the case at hand, the deceased testator Gutya could not have executed the Will in favour of a person who could not be declared to be a tenant having occupancy right and that further the person concerned was not a tenant within the meaning of the Act on the appointed day and hence he was clearly not eligible for occupancy rights. It is needless to point out that the mere possession of the lands will not be sufficient to confer the status of occupancy of tenancy as the sine-qua-non for obtaining the status of occupancy of tenancy rights is that the person concerned must be a tenant on the appointed day. It has to be stated that the tenancy continues notwithstanding the death of the tenant in occupation of certain lands and such (?) is held by the heirs of such tenant on the same terms and conditions on which he had held prior to his death and the heirs who can take the property are those who are referable to in Section 21 of the Karnataka Land Reforms Act and that in the instant case, the person concerned being not an heir of the deceased tenant and there being a spouse (wife) of the deceased tenant living at the relevant time, could not have obtained the status of the occupancy tenant [sic]. Obviously therefore, the person concerned did not seem to have claimed tenancy rights in respect of the lands in occupation of the deceased tenant Gutya. Under the circumstances, therefore, I find no error apparent on the face of the order which is now sought to be reviewed, so as to call for correction by exercise of the review jurisdiction.......Considering the limited scope for review under Order 47 Rule 1 of CPC, the additional evidence sought to be adduced by the Petitioner by means of his I.A. No. 1 cannot be permitted...." 3.7. The aforesaid orders dated 08.08.2001 and dated 06.12.2004, as passed by the High Court of Karnataka in the revision petition and the review petition filed by the appellant are the subject of challenge in these appeals. 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 referred [18]. 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.;