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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF JANUARY 2021
PRESENT
THE HON'BLE MR. JUSTICE G.NARENDAR
AND
THE HON'BLE MR. JUSTICE M.I.ARUN
WRIT APPEAL NO.100059 OF 2014 (LR)
Between:
Indirabai W/o.Naraharirao Mankapuri,
Age 75 years, R/at No.682, 'D' Ward,
Kolhapur, Maharashtra, Since deceased
Rep. by her legal heir namely
Respondent No.3 in the writ petition.
1. Vijay S/o.Naraharirao Mankapuri,
Age 59 years, Occ: Nil,
R/o.: No.2057K/1, A Ward,
Dhotri Galli, Gangavesh,
Kolhapur, Maharashtra,
Rep. by his power of attorney holder
Namely Rekha W/o.Vijay Mankapuri,
Age 53 years, Occ: Household,
R/o.: No.2057K/1, A Ward,
Dhotri Galli, Gangavesh,
Kolhapur, Maharashtra,
... Appellant
(By Shri Shriharsh A.Neelopant, Advocate)
And:
1. Shantavva W/o. Deceased Gaddeppa Kumbar,
Age 29 years, Occ: Agriculturist,
R/o. Hattimattur Village, Tq.: Savanur,
Dist.: Haveri.
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2. Avvappa S/o.Deceased Gaddeppa Kumbar,
Age 30 years, Occ: Agriculturist,
R/o. Hattimattur Village, Tq.: Savanur,
Dist.: Haveri.
3. Ningappa S/o.Deceased Gaddeppa Kumbar,
Age 29 years, Occ: Agriculturist,
R/o. Hattimattur Village, Tq.: Savanur,
Dist.: Haveri.
4. Basavanthappa S/o.Deceased
Gaddeppa Kumbar, Age 36 yeas,
Occ: Agriculturist, R/o. Hattimattur Village,
Tq.: Savanur, Dist.: Haveri.
5. Akkamahadevi D/o.Gaddeppa Kumbar,
Age 32 years, W/o.Shivalingappa Kumbar,
R/o.: Hirenarthi Village, Tq.: Kundagol,
Dist.: Dharwad.
6. The Land Tribunal, Savanur,
Dist.: Haveri, Rep. by its Secretary.
7. F.Y. Jalihal,
Asst. Commissioner/Chairman,
Land Tribunal, Gadag, Dist.: Gadag.
Gangubai W/o.Shanmukappa Suregaonkar
Since by her L.Rs.
8. Subbarao S/o.Nilakantrao Atpakar,
Age 73 years, Pensioner,
R/o. Near N S High School, Bijapur.
... Respondents
(By Shri F.V. Patil, Advocate for R3;
Shri G.K. Hiregoudar, Prl. GA for R6;
Respondent Nos.1, 2, 4 & 5 are served;
Respondent Nos.7 & 8 notice dispensed with)
This writ appeal is filed under Section 4 of the Karnataka
High Court Act, 1961 and Rule 27 of the Writ Proceedings Rules,
praying to set aside the impugned order dated 03.12.2013,
passed by the learned Single Judge in W.P.No.31780/2003 (LR)
and dismiss the writ petition No.31780/2003 (LR).
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This appeal coming on for hearing having been heard and
reserved on 12.11.2020 for judgment and coming on for
pronouncement of judgment this day, M.I.Arun, J., delivered the
following:
JUDGMENT
1. Aggrieved by the order passed in W.P.No.31780/2003, the legal heir of respondent No.3 therein has preferred this writ appeal.
2. The respondents herein are the petitioners in the writ petition. They are the legal heirs of original tenant Gaddeppa Kumbar. It is their case that they have been cultivating the lands in question namely Sy.No.280/2+3 measuring 8 acres 22 guntas and Sy.No.517/2B+C measuring 6 acres 3 guntas. That the lands were leased by the then owner, who is the forefather of the present appellant in favour of one Ningappa Shankarappa Kumbar, the grand father of respondent Nos.2 to 5 and father-in-law of respondent No.1 in the year 1951-52. The tenancy was mutated in ME No.3615. After the death of Ningappa, the son of Ningappa Shankarapa Kumbar and the father of respondent Nos.2 to 5 and the husband of first respondent -4- continued to cultivate the lands. The lease of the lands are evidenced by the Lavani receipt dated 26.03.1979.
3. On coming into force of the amended Land Reforms Act, the tenant filed Form No.7 claiming occupancy rights. The Land Tribunal granted the same. It was challenged in the writ petition No.13091/1977, wherein the order was set aside. The matter was remanded for fresh consideration. Thereafter, by order dated 30.07.1981, occupancy rights were once again granted to the tenant. The landlord filed writ petition No.15950/1981. The order of the Land Tribunal was again set aside and the matter was remanded for fresh enquiry by the order dated 27.12.1983. On remand, the Tribunal rejected the claim of the petitioners by its order dated 25.06.1986. The same was challenged in W.P.No.10624/1986. After establishment of the Land Reforms Appellate Authority the matter was transferred and on its abolition, the CP came to be filed and it was converted into writ petition No.1688/2004. The writ petition was allowed by the order dated 27.03.2002, wherein the order of the Tribunal was set aside and the -5- matter was remanded for fresh enquiry. By the order dated 02.07.2003, the Land Tribunal rejected the plea of the tenants. Hence, the tenants i.e., the respondents herein preferred W.P.No.100059/2014.
4. Learned Single Judge while examining the case found that the Land Tribunal relied solely on the ground that as on 01.03.1974, the record of rights did not evidence the continuation of tenancy and the entry stood in the name of landlord, to reject the claim of the tenants. It is the specific finding of the learned Single Judge that the tenants have shown by referring to records that they were in possession and cultivation of the lands in question and they are lawful tenants and successfully rebutted the entry in record of rights and RTC. On the said grounds the learned Single Judge held that the order of the Tribunal to be bad and allowed the writ petition and has directed the Tribunal to grant occupancy right to the petitioners therein in respect of lands in question. Aggrieved by the same the appellant claiming to be legal heir of the landlord has preferred this appeal.
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5. It is the contention of the appellant that the learned Single Judge erred in allowing the writ petition. That there is no piece of evidence to show that as on 01.03.1974, the respondents herein were in possession of properties in question as a tenants. The revenue records as on 01.03.1974 stood in the name of landlord. The learned Single Judge erred in not accepting the evidence of power of attorney holder as he was the son of land lady and had personal knowledge about the transaction. The learned Single Judge failed to draw adverse inference against the writ petitioners as they had not cross-examined the landlord/appellant. That the learned Single Judge erroneously relied upon the letters said to have been written by the landlord/appellant to the tenants. On the said ground, the appellant has sought for setting aside the order passed by the learned Single Judge.
6. Per contra, the respondents have justified the decision of the learned Single Judge.
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7. In support of his contention, the appellant relies upon the following decisions:
(i) Monthi Menezees (Dead) by legal representatives Vs. Devaki Amma (Dead) by legal representatives and another reported in (2019) 6 SCC 136, paragraph Nos.8 to 16 reads as under:
"8. As noticed, the Land Tribunal in the first place examined the entire matter in detail and upheld the objections of the landlord in relation to the land comprising Survey Nos. 143/2B, 144/2 and 144/3, though the applicant was claiming the occupancy rights therein too. As regards the land comprising Survey No. 119/2A1, though the applicant claimed occupancy rights over 4.71 acres, the Tribunal granted such rights only to the extent of 3.07 acres after finding that such parcel of land was being used for agricultural purposes and without this land, the applicant cannot cultivate the other parcels of land. After the matter was remanded by the High Court for reconsideration, the Tribunal undertook fresh inquiry as regards the said land of Survey No. 119/2A1 and again accepted the prayer of the applicant with the clear finding that the applicant was in possession of 3.07 acres of land in Survey No. 119/2A1 as on 01.03.1974 and prior to it. The Tribunal also held that this land was given to the applicant for better cultivation and development of other parcels of land with him and therefore, non-inclusion of this parcel of land in the lease chit was of no adverse effect on the claim of the applicant. As regards such categorical findings of the Tribunal, the learned Single Judge proceeded to observe that mere possession or mere payment of land revenue was of no effect because there was no material on record to establish a lawful tenancy and landlord-tenant relationship.-8-
9. With respect, we are unable to find if the learned Single Judge at all adverted to the reasons that had prevailed with the Tribunal that the land in question was allowed to the tenant for better cultivation of other parcels of land. The learned Single Judge also observed, with reference to the Division Bench decision in Subhakar's case that unless Punja land was shown to have been brought under cultivation, it would not be recorded as agricultural land. However, in the said decision, Division Bench of Karnataka High Court has also observed that the question as to whether Punja Land is cultivable or not is a pure question of fact. In the said decision, grant of occupancy rights was denied on the given set of facts, where only thatched grass had grown naturally on the land in question that was shown to be Punja land and it was also found that there was a built house surrounding the land in question. The said decision in Subhakar's case could only be read in the context of the facts therein and the relevant factual aspects of the present case cannot be ignored.
10. While dealing with the intra-court appeal against the order so passed by the learned Single Judge, the Division Bench, in paragraph 2 of its judgment has even gone to the extent of observing that, as per the record, the landlord was in possession of the land in question as on the appointed date. In fact, such had not been the finding even by the learned Single Judge, who proceeded to observe that mere possession by itself cannot establish lawful tenancy. The findings of the Tribunal, on the contrary, had been that the applicant Shri Bona Menezes was in possession of the land in question as on 01.03.1974 and even prior to it.
11. The significant aspects of the matter, as taken into consideration by the Tribunal, had been that there was a reference in the lease chit about mango trees, cashew, tamarind and the lessee was to enjoy the fruits of the allied land also. The Tribunal also observed that for the purpose of cultivating other land, the applicant had to depend upon the land in -9- question and hence, the said land was also to be considered as included in the lease chit. The Tribunal also found that the original Survey No. 119/2A was divided by stone, making it No. 119/2A1 and No. 119/2A2; and the first one, being No. 119/2A1 admeasuring 3.07 acres, was in possession of the applicant whereas the other one, being No. 119/2A2 admeasuring 1.64 acres, was in possession of the landlord.
12. Hereinabove, we have only indicated the relevant aspects emanating from the findings of the Land Tribunal and it is but apparent that the High Court, while dealing with the writ petition as also the writ appeal has not adverted to such categorical findings of the Tribunal.
12.1. Apart from the above, it is also apparent that the High Court did not examine the definition of "land" as set out in Section 2(A)(18) of the 1961 Act to find if the land in question answers to the description therein. The wide-ranging meaning assigned to the expression "land" for the purpose of the 1961 Act makes it clear that the expression refers not only to the land which is actually used for agricultural purposes but even to the land which is used or is capable of being used for agricultural purposes or even the purposes subservient thereto. On the facts and in the circumstances of this case, the said definition deserves due consideration while dealing with the challenge to the order made by the Tribunal.
13. In view of the aforesaid, where we find that the High Court has not adverted to all the facts of the case as also to the law applicable, the proper course in this matter would be to remand the matter and to request the High Court to decide the writ petition afresh on merits and in accordance with law.
14. It is also noticed that while issuing notice in this matter on 18.07.2008, this Court ordered status quo in relation to possession of subject of dispute to be
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maintained. While granting leave on 08.05.2009, the said interim order was confirmed until the disposal of this appeal. In the totality of circumstances of the case, it is also appropriate that such interim order remains in operation until final disposal of the writ petition by the High Court.
15. In the interest of justice, it is also made clear that we have not expressed any opinion on the merits of the controversy and the observations herein are relevant only for the purpose of our reasons for remanding the matter. Hence, the matter involved in the writ petition remains open for decision afresh by the High Court on merits, without being influenced by any observation made in the orders impugned or in this order.
16. Hence, this appeal succeeds and is allowed to the extent and in the manner that the impugned orders dated 12.03.2008 and 17.11.2006 are set-aside and Writ Petition No. 11344 of 1999 is restored for reconsideration of the High Court in accordance with law. Until final disposal of the writ petition, status quo in relation to possession of subject of dispute shall be maintained by all the parties. To put the record straight, it is also provided that the legal representatives of the respective parties, as substituted in this appeal, shall stand substituted in the writ petition and the High Court shall proceed with the matter after amending the cause title accordingly."
(ii) Veerappa Rudrappa Alagawadi Vs. the Land Tribunal at Kalaghatgi and another reported in ILR 1976(1) KAR. 116 in penultimate paragraph it has been held as under:
"In this case the parties intended that the petitioner should give up possession of the property
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at the end of 1969-70. It has also to be borne in mind that the above agreement was entered into by the petitioner at a time when an ordinary tenant of agricultural land was not to give up possession after the expiry of the period agreed upon. If the parties intended that the transaction should be one in the nature of an ordinary lease they would not have used to words "undu biduva karara". It is no doubt true that there is a statement in the above deposition that the petitioner had paid the rents subsequent to 1969-70. But there is no proof available on record in support of his case that he had paid rent in respect of the period subsequent to 1969-70. The Tribunal has not accepted that part of the case of the petitioner. The petitioner has not got any receipt to show that he had paid rents after 1969-70. Even if he has continued in possession of the property after 1969-70, his possession cannot be that of a tenant particularly in the absence of any plea much less proof of the fact that an agreement of tenancy was entered into after the expiry of 1969-
70. Whatever else it may be, onething is clear that his possession is not that of a tenant. When that conclusion is reached, the question of applying the provisions of the Karnataka Land Reforms Act and declaring him as a tenant would not arise."
(iii) Parayya Irayya Vs. Land Tribunal, Mudhol & Ors. reported in 1979(2) Kar.L.J. 282 paragraph 8, it has been held as under:
"8. The document dated 16.11.1967 is only an agreement, the terms of which we have already noticed. There is no stipulation for payment of any premium or rent by respondent No.3 to the appellant. In these circumstances, we find it difficult to hold that the agreement dated 16.11.1967 is a deed of lease as claimed by respondent No.3."- 12 -
(iv) Vilas alias Gundu Anathacharya Vs. State of Karnataka reported in ILR 1987(2) KAR. 1427 at paragraph Nos. 35 and 37, it has been held as under:
"35. The word 'tenant' has been defined by Section 2(34) of the Karnataka Land Reforms Act. It reads as -
" "tenant" means an agriculturist who cultivates personally the land he holds on lease from a landlord and includes :-
(i) a person who is deemed to be a tenant under Section 4;
(ii) a person who was protected from eviction from any land by the Karnataka Tenants (Temporary Protection from Eviction) Act, 1961;
(iia) a person who cultivates personally any land on lease under a lease created contrary to the provisions of Section 5 and before the date of commencement of the Amendment Act;
(iii) a person who is a permanent tenant; and
(iv) a person who is a protected tenant."
The present tense is used in the said definition. Therefore, in order to get the benefit of the Karnataka Land Reforms Act, the person claiming to be a tenant must show that he has been and he is in cultivation of the land even on the material date i.e., on 1-3-1974. The definition of the word 'tenant' does not include persons, who were tenants some time before 1-3-74 or some time before the coming into operation of the Land Reforms Act. Therefore, the argument of the learned Counsel Sri Mandagi based on the entries in the record of rights extract Exhibit B-49 that Rudrappa who was shown as cultivator for the years 1945-46 to 1952-53 regarding Survey No.
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154/1B, should be presumed to have been continued as tenant, runs contrary to the law and also the principle laid down in the above said B.S.V. Temple case.
The explanation given to Section 2(34) reads as-
"A person who takes up a contract to cut grass, or to gather the fruits or other produce of any land, shall not on that account only be deemed to be a tenant."
This explanation renders hollow and unacceptable the argument of the learned Counsel Sri Mandagi that if the work of cutting sugar cane and transporting sugar cane, is given on contract, the person who would take up such contract would be a tenant. His argument cannot be accepted in view of the said Explanation to Section 2(34) of the Land Reforms Act.
37. Section 45 reads as :
"(1) Subject to the provisions of the succeeding Section of this Chapter, every person who was a permanent tenant, protected tenant or other tenant or where a tenant has lawfully sublet, such sub-tenant shall with effect on and from the date of vesting be entitled to be registered as an occupant in respect of the lands of which he was a permanent tenant. Protected tenant or other tenant or sub tenant before the date of vesting and which he has been cultivating personally."
(underlining is mine) Therefore, the right to apply for conferment occupancy rights has been extended to the tenant only if the land in question was in cultivation of the tenant round about 1-3-1974. The material, oral or documentary, does not show that respondents 3 and 4 were in possession and cultivation and enjoyment of the petition lands or any one of them round about or immediately prior to 1-3-1974. Admittedly Rudrappa, father of Respondents 3 and 4 died in the
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year 1960. Therefore, he cannot be said to be in possession and cultivation of the lands round about 1-3-1974. Therefore, the question of the lands or any one them having vested in State Government does not arise. Therefore, Respondents 3 and 4 do not get any right at all as per Section 45 of the Land Reforms Act to seek conferment of occupancy rights in respect of the petition lands or any one of them."
8. The respondents contend, that the above decisions, on facts are not applicable to the instant case.
9. The tenants, in order to be granted occupancy right in respect of the lands in question, they have to establish their tenancy in accordance with law and also they have to show that as on 01.03.1974, they were tenants of the lands in question.
10. The entries made in the revenue records only prima facie proves as to in whose possession the lands are in at a given point of time. But the same can be rebutted by producing relevant documents/materials to the contrary.
11. In the instant case, the only document harped upon by the appellant to establish that the landlord were in possession of the property as on the relevant date are the
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revenue records. The tenants have rebutted the same by producing the lavani receipts and the letters written by landlord to the tenants, evidencing the payment of money as well as sharing of crops as a consideration for their tenancy. It is found that the landlord admits to the tenancy, but it is their contention that the same was terminated before 01.03.1974 and as on that date, there was no tenancy in respect of the said lands and that the respondents or their ancestors were not cultivating the same. However, the appellant has failed to produce any document to show the termination of tenancy. On the contra, the respondents have been able to show the lavani receipts as late as in the year 1979, as also the money order receipts and the letters written by the landlord to the tenants, which shows that they continued cultivation even after 01.03.1974 and that the entries in the revenue records regarding the status of the lands was erroneous.
12. Thus, on facts, the learned Single Judge came to the conclusion that tenancy was established and the petitioners therein were able to establish the same. The
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tribunal failed to appreciate the relevant evidence and came to the wrong conclusion that there was no tenancy and rejected the claim of the tenants.
13. The case laws relied upon by the appellant herein reflects the proposition of law as to the tenants being required to be in possession of the property as on the relevant date. They are of not much use to the appellant. On facts, the learned Single Judge has come to the conclusion that the property was given on lease to the petitioners therein. They paid money as well as crops as a consideration for the same. The landlord is a resident of Kolhapur, whereas the tenants are residing in the village where the lands are situated. The document evidences the fact that it was a lawful tenancy and continued much later on 01.03.1974. Thus on facts, the learned Single Judge has rightly come to the conclusion that mere entries in the revenue records will not disprove the rights of the respondents herein as to claiming occupancy rights. The appellant has miserably failed to show as to how the conclusion arrived by the learned Single Judge is erroneous.
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14. For the aforementioned reasons, we do not find any error in the order of the learned Single Judge and the writ appeal is hereby dismissed.
SD/-
JUDGE SD/-
JUDGE Vnp*