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Vyvyan PRE |
1861] 30 Beav.65 : 54 E.R.813,817] "waiver or acquiescence,like election,presupposes that the person to be bound is fully cognizant of his rights,and,that being so,he neglects to enforce them,or chooses one benefit instead of another,either,but not both,of which he might claim PRE |
In The Director of Inspection of Income Tax (Investigation),New Delhi and Another v PRE |
Pooran Mal & Sons and Another [(1975) 4 SCC 568 1974 Indlaw SC 354] the issue was regarding waiver of benefits under a statute of limitation PRE |
It was stated: "We may in this connection refer to the decision in Wilson v PRE |
McIntosh PRE |
In that case an applicant to bring lands under the Real Property Act filed his case in court under Section 21,more than three months after a caveat had been lodged,and thereafter obtained an order that the caveator should file her case,which she accordingly did PRE |
It was held that he had thereby waived his right to have the caveat set aside as lapsed u/s.23.The Privy Council held that the limitation of time contained in S.23 was introduced for the benefit of the applicant,to enable him to obtain a speedy determination of his right to have the land brought under the provisions of... |
They referred with approval to the decision in Phillips v PRE |
Martin where the Chief Justice said: "Here there is abundant evidence of waiver,and it is quite clear that a man may by his conduct waive a provision of an Act of Parliament intended for his benefit PRE |
The caveator was not brought into Court in any way until the caveat had lapsed PRE |
And now the applicant,after all these proceedings have been taken by him,after doubtless much expense has been incurred on the part of the caveator,and after lying by and hoping to get a judgment of the Court in his favour,asks the Court to do that which but for some reasons known to himself he might have asked the Cou... |
I think he is altogether too late PRE |
It is to my mind a clear principle of equity,and I have no doubt there are abundant authorities on the point,that equity will interfere to prevent the machinery of an Act of Parliament being used by a person to defeat equities which he has himself raised,and to get rid of a waiver created by his own acts PRE |
The legal principle emerging from these decisions is also stated in Craies on Statute Law (6th Edn.) at page 369 as follows: "As a general rule,the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction Ratio |
But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the Action themselves,and that no public interests are involved,such conditions will not be considered as indispensable,and either party may waive them without affecting the jurisdiction... |
emphasis supplied Ratio |
Applying the above principles to the present case,it must be held that the benefit of notice provided under the Act and Rules being for the benefit of the Appellant in which no public interests are involved,he has waived the same Ratio |
Significantly,a similar conclusion was reached in the case of Krishna Bahadur v PRE |
Purna Theatre [(2004) 8 SCC 229 2004 PRE |
Indlaw SC 681],though the principle was stated far more precisely,in the following terms: "The principle of waiver although is akin to the principle of estoppel; the difference between the two,however,is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a... |
A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein PRE |
Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being PRE |
Statutory right,however,may also be waived by his conduct PRE |
Emphasis supplied] [See also Bank of India v PRE |
O.P.Swarnakar (2003) 2 SCC 721 2002 Indlaw SC 1562 PRE |
In Ramdev Food Products Pvt PRE |
Ltd.v PRE |
Arvindbhai Rambhai Patel and Ors.[2006 (8) SCALE 631 2006 Indlaw SC 786],this Court observed: "The matter may be considered from another angle PRE |
If the first respondent has expressly waived his right on the trade mark registered in the name of the appellant-Company,could he claim the said right indirectly PRE |
The answer to the said question must be rendered in the negative PRE |
It is well-settled that what cannot be done directly cannot be done indirectly PRE |
The term 'Waiver' has been described in the following words: "Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted,and is either express or implied from conduct PRE |
A person who is entitled to rely on a stipulation,existing for his benefit alone,in a contract or of a statutory provision may waive it,and allow the contract or transaction to proceed as though the stipulation or provision did not exist PRE |
Waiver of this kind depends upon consent,and the fact that the other party has acted upon it is sufficient consideration It seems that,in general,where one party has,by his words or conduct,made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordin... |
In this view of the matter,it may safely be stated that the appellant,through his conduct,has waived his right to an equitable remedy in the instant case Ratio |
Such conduct precludes and operates as estoppel against him with respect to asserting a right over a portion of the acquired land in a situation where the scheme in question has attained finality following as a result of the appellant's inaction Ratio |
Lalit submits that his client is ready and willing to pay some reasonable amount to the respondent No.3 in whose favour plot No.165 has been finally allotted Ratio |
Issuance of any such direction,in our opinion,is legally impermissible Ratio |
We,therefore,are of the opinion that in this case,no relief can be granted to the appellant RPC |
He may,however,take recourse to such remedy which is available with him in law including one by filing a suit or making a representation before the State RPC |
For the reasons aforementioned,the appeal is dismissed RPC |
No costs RPC |
Appeal dismissed RPC |
In our view,although the High Court had set aside the concurrent findings of fact arrived at by the Tribunals below under the Karnataka Land Reforms Ratio |
Act,1974 (in short'the Act') in the exercise of its revisional jurisdiction under Section 121A of the Act,even then,this is not a fit case where this Court,in the exercise of its power u/art.136 of the Constitution would interfere with such an order of the High Court Ratio |
The appellants in this appeal,claiming to be the tenants of agricultural land,bearing Survey No.125/1,measuring 3 acres 11 Gunthas FAC |
hereinafter called as the "scheduled land") situated in Lingabahalli Village,Madhugiri Taluk in the State of Karnataka,filed Form No.7 before the Land Tribunal praying for a declaration that they had acquired occupancy rights in respect of the scheduled land FAC |
They alleged that they were cultivating the scheduled land from 1968 till the notified date under the Act on Wara basis giving 1/3rd of the share in the foodgrains to respondent No.4.Accordingly,the appellants prayed for an order of occupancy right in respect of the scheduled land alleging that they and their father we... |
right holders relying,inter alia,on the entries under the RTC record FAC |
The case of the appellants,as made out,was disputed by the respondent No.4.The case of respondent No.4 was that the scheduled land was mortgaged to the 3rd respondent,Rajashankar,in the year 1968 and after the expiry of the said mortgage,the mortgagee was liable to deliver possession of the same FAC |
The case of tenancy as made out by the appellants or their father was denied FAC |
It was alleged by the respondent No.4 that since the respondent No.3 was a film actor and had settled in Madras (now Chennai),with the consent of the respondent No.3,the scheduled land was given to the father of the appellants and the father of the appellants was cultivating the same from the year 1968 but not as a ten... |
Accordingly,they prayed for rejection of the application filed by the father of the appellants claiming occupancy rights under the Act FAC |
Initially,the Land Tribunal allowed the application of the father of the appellants and feeling aggrieved; a writ petition was filed against the said order FAC |
The High Court had set aside the order of the Land Tribunal and remanded the case back to the Tribunal for a fresh decision FAC |
The Land Tribunal,after remand,relying on the entries in the RTC record and some other materials on record,granted occupancy rights in favour of the appellants FAC |
Feeling aggrieved,the respondent No.4 filed an appeal before the Appellate Authority,which was also dismissed FAC |
A revision petition,thereafter,was moved before the High Court and the High Court,by the impugned judgment,had set aside the concurrent findings of fact and rejected the application filed by the father,since deceased,of the appellants holding,inter alia,that the appellants or their father had failed to prove the tenanc... |
A special leave petition was filed against the judgment of the High Court,setting aside the concurrent orders allowing the application,in respect of which leave has already been granted FAC |
We have heard Mr Ratio |
Raju,learned counsel appearing on behalf of the appellants and Mr Ratio |
S.N.Bhat,learned counsel appearing on behalf of the respondents Ratio |
We have examined the impugned judgment of the High Court as well as the orders of the Tribunals below Ratio |
It is true that the High Court,while exercising its revisional power under Section 121A of the Act,had set aside the concurrent findings of fact of the Land Tribunal as well as of the appellate authority,even then,examining the findings of the High Court and considering the power conferred on it in the revisional juris... |
While setting aside the findings of the Tribunal,the High Court,at paragraph 7 of the impugned judgment made the following findings: "It is an undisputed fact that the revision petitioner has mortgaged the land in dispute in favour of the 5th respondent,Rajashankar in the year 1968 and after the expiry of the mortgage ... |
When the matter stood thus,the father of the respondent Nos.3 and 4 Gondappa,who is the uncle of the 5th respondent,Rajashankar,filed Form No.7 before the Land Tribunal claiming occupancy rights in respect of the land in dispute contending that he is the tenant of the said land,under the 5th respondent from the year 19... |
To prove this fact,he relied upon the entries in the R.T.C.extract for the years 1968 to 1974 wherein his name is shown as the person in cultivation of the land in dispute FAC |
But,it is significant to note that the nature of cultivation of the land is not shown as that of a tenant in the said R.T.C.extracts FAC |
In one year,the nature of cultivation is described as "Swantha"and in the years,the column is left blank FAC |
Thus the R.T.C.extracts produced by him do not support his contention that he was cultivating the land in dispute as a tenant FAC |
He has not produced any Geni receipts or any Lease Agreement to show that the 5th respondent has leased out the land in dispute in his favour on crop share basis and that he paid the Geni to the 5th respondent FAC |
Thus,he has no documentary evidence in respect of his claim that he came in possession of the land in dispute as a tenant under the 5th respondent and that he was cultivating the land in dispute as a tenant FAC |
It is further significant to note that in the evidence given by the respondent No.3 before the Land Tribunal,he claimed that his father has taken the land in dispute on lease in the year 1962,from the father of the petitioners,Gundu Rao FAC |
Even in respect of the said claim,he failed to produce any documentary evidence evidencing the said lease of land in dispute from Gundu Rao FAC |
On the other hand,in Form No.7 filed by Gondappa,the father of the respondents 3 and 4,he alleged that he was the tenant under the 5th respondent in respect of the land in dispute from the year 1968 FAC |
Thus,there is no consistent stand regarding the year of commencement of tenancy or under whom,Gondappa,the father of the respondents 3 and 4 became the tenant FAC |
So,the only question which arises for consideration is whether the said cultivation of the land in dispute by the father of the respondents 3 and 4 during the years 1968 to 1974 can be presumed to be that of a tenant under the provisions of S.4 of the Karnataka Land Reforms Act FAC |
S.4 of the Act makes it clear that a member of the owner's family cannot be considered as a deemed tenant,even if he is lawfully cultivating the land belonging to owner FAC |
In the present case,since the father of the respondents 3 and 4,is the uncle of the respondent No.5,it cannot be said that he is not a member of the family of the respondent No.5 FAC |
Though there is no evidence on record to show that there are any joint family properties belonging to the joint family of respondent No.5 and his uncle,there is nothing on record to show that they are not living as members of the joint family FAC |
So,it is not possible to presume that the father of the respondent Nos.3 and 4 Gondappa,who is the uncle of respondent No.5 was not the member of the family of the mortgagee,respondent No.5 FAC |
Again,the High Court,while setting aside the findings of fact also made the following findings: "But in the instant case,since the respondents 3 and 4 failed to produce any evidence to show that their father was cultivating the land in dispute as a tenant under the 5th respondent mortgagee and even when the entries in ... |
The father of the respondents 3 and 4,being the uncle of respondent No.5-Mortgagee,it is also quite possible that he might have been allowed to cultivate the land in dispute under the personal supervision of respondent No.5 by assisting him in cultivation of the said land FAC |
In the present case also,the respondents 3 and 4 failed to prove that their father was cultivating the land in dispute from the year 1968 as a tenant under the respondent No.5 and that after the death of their father,they continued as tenants in respect of the land in dispute FAC |
It is also significant to note that the respondent No.5,who was alive when the enquiry was pending before the Land Tribunal has not given evidence in favour of the respondents 3 and 4 stating that he has leased out the land in dispute in favour of the respondents 3 and 4.Except the interested testimony of respondents 3... |
So,it is not possible to presume that the father of the respondents 3 and 4 was inducted as a tenant by the mortgagee,the 5th respondent,in respect of the land in dispute FAC |
Since the respondents 3 and 4 failed to produce any documentary evidence to show that their father was put in possession of the land in dispute by the 5th respondent,mortgagee as a 'tenant' and that they are continuing as tenants in respect of the said land after the death of their father,I find that they are not entit... |
The earlier decision of this Court reported in ILR 1996 KAR page 2340 that when a person fails to prove that he is cultivating the land as tenant,he cannot be granted occupational right notwithstanding the fact that he might be in possession of the land and cultivating the same,is applicable to the facts of the present... |
From a careful examination of the findings given by the High Court,as quoted hereinabove,in upsetting the concurrent findings of fact arrived at by the Tribunals below,we are not in a position to hold that the High Court was not justified in setting aside the concurrent orders of the Tribunals below in the exercise of ... |
The power conferred on the High Court to revise the orders of the tribunals below has been provided in Section 121A of the Act,which runs as under: "The High Court may at any time call for the records of any order or proceeding recorded by the Appellate authority under this Act or any other law for the purpose of satis... |
From a plain reading of Section 121A of the Act,under which revisional jurisdiction can be exercised,it would be clear that the High Court,while exercising such power is entitled to re-appreciate the evidence when it finds that the conclusion arrived at by the appellate authority runs contrary to the materials on recor... |
It would also be clear from a plain reading of Section 121A of the Act that the High Court is also entitled to interfere with the orders of the Tribunals below when the material evidence on record was ignored or a finding was such that no court would come to such conclusion or that the decision of the Tribunals below w... |
We have carefully examined the provisions under Section 121A of the Act,which is the revisional power under the Act,and also the provisions u/s.115 of the Code of Civil Procedure (for short "the Code").So far as S.115 of the Code is concerned,it has been made clear that it is only in case of a jurisdictional error or w... |
On the other hand,in our view,under Section 121A of the Act,it would be open to the High Court to interfere with the orders of the tribunals below as the High Court is empowered to look into the legality of the order or regularity of the proceedings although,in the exercise of revisional jurisdiction u/s.115 of the Cod... |
Reading the aforesaid provisions viz.,Section 121A of the Act and S.115 of the Code,we have no hesitation in our mind to hold that the revisional power exercised by the High Court under section 121A of the Act is wider than the one exercised by the High Court in its revisional jurisdiction u/s.115 of the Code Ratio |
As noted herein earlier,since section 121A of the Act clearly empowers the High Court to look into the legality of the orders impugned,therefore,it would be open to the High Court to consider the material evidence on record,when it finds that such evidence was not at all considered by the tribunals below or when the co... |
Therefore,under section 121A of the Act,in the presence of any of the abovementioned circumstances,the High Court is empowered to look into the legality of the orders impugned in deciding the question whether the appellants could be held to be the tenants under the respondent Nos.3 or 4 Ratio |
Keeping the aforesaid principles in mind as to when the High Court would be justified,in the exercise of its power under Section 121A of the Act,to examine the legality of the orders of the tribunals below in an appropriate case,let us now examine the findings of the High Court,while setting aside the concurrent findin... |
In our view,on a careful examination of the findings of the High Court,which were based on consideration of the material evidence on record,it is difficult for us to hold that the High Court was not justified in setting aside the concurrent findings of fact of the tribunals below in the exercise of its jurisdiction und... |
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