Karnataka High Court

Shankarappa Basappa Tangdagi Ors vs The State Of Karnataka Ors on 25 February, 2022

Bench: E.S.Indiresh

                          1




         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

     DATED THIS THE 25TH DAY OF FEBRUARY, 2022

                        BEFORE

       THE HON'BLE MR.JUSTICE E.S.INDIRESH


 WRIT PETITION No.81672 OF 2012 (KLR RR/SUR)


BETWEEN

1.     SHANKARAPPA BASAPPA TANGDAGI
       SINCE DECEASED BY HIS LRS

       1-A) SIDDANAGOUDA
       S/O SHANKARAPPA TANGADGI,
       AGED ABOUT 57 YEARS OCC: AGRICULTURE

       1-B) RAMANAGOUDA
       S/O SHNAKARAPP TANGADAGI
       AGED ABOUT 50 YEARS, OCC: AGRICULTURE

       1-C) MAHADEVAPPA
       S/O SHANKARAPPA TANGADAGI
       AGED ABOUT 55 YEARS, OCC: AGRICULTURE

       1-D) SHANTAGOUDA
       S/O SHANKARAPPA TANGADAGI
       AGED ABOUT 52 YEARS, OCC: AGRICULTURE

       1-E) NINGANAGOUDA
       S/O SHANKARAPPA TANGADAGI
       AGED ABOUT 46 YEARS, OCC: AGRICULTURE

       1-F) NANAGOUDA
                         2




     S/O SHANKARAPPA TANGADAGI
     AGED ABOUT 48 YEARS OCC: AGRICULTURE

2.   SHIVABASAPPA BASAPPA TANGADAGI
     SINCE DECEASED BY HIS LRS

     2-A) BASANAGOUDA
     S/O SHIVABASAPPA TANGADAGI
     AGED ABOUT 49 YRS, OCC: SERVICE

     2-B) BHIMANAGOUDA
     S/O SHIVABASAPPA TANGADAGI
     AGED ABOUT 43 YEARS, OCC: AGRICULTURE

     2-C) PRABHUGOUDA
     S/O SHIVABASAPPA TANGADAGI
     AGED ABOUT 36 YEARS, OCC: AGRICULTURE

3.   GURAPPA BASAPPA TANGADAGI
     SINCE DECEASED BY HIS LRS

     3-A) LAXMIBAI
     W/O GURAPPA TANGADAGI
     AGED ABOUT: 65 YEARS OCC: HH WORK

     3-B) YAMANAPPA @ YAMANOOR
     S/O GURAPPA TANGADAGI
     AGED ABOUT 42 YEARS, OCC: AGRICULTURE

4.   SAHEBGOUDA
     S/O SIDRAMAPPA TANGADAGI
     AGED ABOUT 52 YEARS, OCC: AGRICULTURE
     ALL R/o GADISOMANALA VILLAGE,
     TQ: MUDDEBIHAL, DIST: BIJAPUR-586 214

                                   ... PETITIONERS

(BY SRI ASHOK R KALYANASHETTY, ADVOCATE)
                           3




AND:

1.     THE STATE OF KARNATAKA
       REP. BY ITS SECRETARY
       REVENUE DEPARTMENT
       M.S. BUILDING, BANGALORE-1.

2.     THE LAND TRIBUNAL
       REP. BY ITS CHAIRMAN
       MUDDEBIHAL DIST BIJAPUR

3.     SHANTARAM
       S/O VISHWANATH SARVADE
       SINCE DECEASED BY HIS LRS

       3-A) GURUNATH
       S/O SHANATARAM SARVADE
       AGED ABOUT 40 YRS, OCC: TAILOR

       3-B) VISHWANATH
       S/O SHANTARAM SARVADE
       AGED ABOUT 38 YEARS, OCC: TAILOR

       3-C) NANABAI
       W/O S DAYAPALE
       AGED ABOUT 36 YEARS, OCC: HH WORK

       3-D) TULAJABAI
       W/O SHANTARAM SARVADE
       AGED ABOUT 60 YEARS, OCC: HH WORK

4.     SUBHADRABAI
       W/O TULAJARAM DHOYAPULE
       AGED ABOUT 62 YEARS, OCC: HH WORK
       R/O MUDDEBIHAL DIST. BIJAPUR-586 214

5.     SARASWATHIBAI
       W/O NARSIMHA BEDARKAR
       AGED ABOUT 64 YEARS, OCC: HH WORK
                                4




      ALL R/O TALIKOTI,
      TQ. MUDDEBIHAL
      DIST. BIJAPUR-586 214
                                               ... RESPONDENTS
(BY SMT. MAYA T.R., HCGP FOR R1 & R2;
 SRI HARSHAVARDHAN R. MALIPATIL,
 ADVOCATE FOR R3(A TO D); R4 & R5- SERVED)

      THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO ISSUE A WRIT OR ORDER OR DIRECTION WRIT IN THE
NATURE OF CERTIORARI SETTING ASIDE ORDER DATED
11.5.2012 IN NO. LRM/98/SR/16 PASSED BY THE 2ND
RESPONDENT LAND TRIBUNAL, MUDDEBIHAL VIDE
ANNEXURE-P AND ETC.,

     THIS PETITION COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:-

                         ORDER

In this writ petition, the petitioners have challenged

the order dated 11.05.2012 in No.LRM/98/SR/16 passed

by 2nd respondent-Land Tribunal, Muddebihal vide

Annexure-P.

2. It is the case of the petitioners that land

bearing Survey No.92, measuring 22 acres, 5 guntas

situated at Gadisomanala village, Muddebihal taluk,

Vijayapura Dist, belong to Sri.Vishwanath, S/o.Gurunath

Sarvade. It is further stated in the writ petition that, the

said Vishwanath was not residing at Gadisomanala village,

and as such, original petitioner (Shankarappa Basappa

Tangadagi) was inducted as tenant in the year 1956-57. It

is further stated that, father of petitioner No.4 being the

eldest brother, was managing the affairs of the joint family

and accordingly, his name has been entered in the record

of rights as per Annexure-A. It is further stated that the

revenue entries show the name of the father of the

petitioner No.4 for the year 1956-57 till 1986-87. It is

further pleaded that, the father of the petitioners were in

cultivation of the land in question as lawful tenants and

they were paying the land revenue to the concerned

authorities. It is the case of the petitioners that, after the

enactment of Karnataka Land Reforms Act, 1961, the

father of the petitioners made an application in Form No.

7, seeking occupancy rights in respect of subject land and

the said application was rejected by the Land Tribunal as

per order dated 21.11.1980 (Annexure-E) and being

aggrieved by the said order, the father of the petitioners

approached this Court in WP No.3299/1981 and this Court

after hearing the parties, set aside the order dated

28.11.1980 and remanded the matter to the Land Tribunal

for fresh enquiry vide Annexure-F. Thereafter, 2 nd

respondent conducted fresh enquiry, and granted

occupancy rights in favour of the father of the petitioners 1

and 2, petitioners 3(a) and (b) and petitioner No.4, by

order dated 30.09.1987 (Annexure-G). Being aggrieved by

the same, the respondent-land owners, approached Land

Reforms Appellate Authority, Bijapur, and thereafter, same

was transferred to this Court in WP No.29062/1991. This

Court by order dated 30.09.1987, remanded the matter to

the Tribunal and thereafter, fresh enquiry was conducted

by the Tribunal and by order dated 17.04.1999 (Annexure-

H) held that the father of the petitioners have not proved

that they are tenants under the Karnataka Land Reforms

Act and accordingly, rejected the application filed by the

petitioners. Being aggrieved by the same, the father of the

petitioners have approached this Court in WP

No.16814/1999 and this Court by order dated 11.08.1999

allowed the writ petition and remitted the matter to the

Land Tribunal for fresh disposal. The said order was

challenged before the Division Bench in Writ Appeal No.

8139 of 1999 and Division Bench of this Court dismissed

the appeal and thereafter, the matter was heard by the

Land Tribunal. The Land Tribunal, after considering the

factual aspects of the case, by order dated 28.07.2004

(Annexure-M) confirmed occupancy rights in favour of the

father of the petitioners. Being aggrieved by the same, the

3rd respondent (Shantaram) filed WP No.31241/2004 and

this Court by order dated 10.07.2006 allowed the writ

petition and set aside the order dated 28.07.2004 passed

by the Land Tribunal and remanded the matter for fresh

consideration and thereafter, the Land Tribunal, after

remand, by its order dated 11.05.2012 dismissed the claim

made by the petitioners. Being aggrieved by the same, the

petitioners have filed this writ petition.

3. Sri Ashok R. Kalyan Shetty, learned counsel

appearing for the petitioners contended that the father of

the petitioners are lawfully cultivating the land in question

since from 1956-57 and revenue entries have been

effected in the RTC and said legal presumption has not

been properly assessed by the Land Tribunal. He further

contended that the conclusion arrived at by the Land

Tribunal that father of the petitioners have handed over

the possession in the year 1968 to the father of the

respondents 3(a) and (b) on 04.09.1974 is incorrect and

infact, the petitioners are in possession of the land in

question on the relevant date of 01.03.1974 as 'tenant

under the Act. He further contended that the father of the

petitioners were paying the land revenue to the

respondent-authorities and the said aspect has not been

considered by the Land Tribunal. He also invited the

attention of the Court to Section 26 of the Karnataka Land

Reforms Act, 1964 (hereinafter referred to as 'the Act')

and Sections 58 and 59 of the Transfer of Property Act,

1882 and argued that the land was tenanted in favour of

father of the petitioners and therefore, he contended that

the impugned order passed by the Land Tribunal is

contrary to records, which required to be set aside in this

writ petition. To buttress his arguments, Sri Ashok R.

Kalyanshetty, learned counsel appearing for the petitioner

places reliance on the judgment of this Court in the case of

Melegowda vs. Gaibusab and another reported in

1978(1) KLJ 155, in the case of Mallappa Bharamappa

Madar vs. Basavanthappa reported in ILR 1994 KAR

804, in the case of Ananda Gowda and Others vs. The

State of Karnataka and Others reported in 2000(1)

KCCR 284 and in the case of Hanamappa Ramappa

Khajagal vs. State of Karnataka and Others reported

in 2006(3) Kar. L.J. 525 and argued that the tribunal has

not considered the position of the land prior to 1964 and

therefore, he contended that the impugned order passed

by the Land Tribunal requires to be set aside.

4. Per contra, Sri Harshavardhan R Malipatil,

learned counsel appearing for respondents 3(a) to (d)

contended that the land in question has been mortgaged

as "Undu Biduva Kararu" and therefore, respondents have

not treated the petitioners or their father as 'tenant' under

the Act and in view of the law declared by the Division

Bench of Court in the case of Parayya Irayya

Mathapathi vs. The Land Tribunal, Bijapur and others

reported in ILR 1979 KAR 2241, the writ petition

deserves to be rejected. He further contended that though

the entry has been made in the year 1964-65 relating to

the mortgage however, the father of the petitioner nor the

petitioner have taken any steps to rectify the same and

therefore, the contended that the Land Tribunal is justified

in rejecting the claim/application of the father of the

petitioner/petitioner herein.

5. In the light of the submission made by the

learned counsel appearing for the parties, I have carefully

considered the finding recorded by Land Tribunal. Subject

matter of the writ petition is that, the land bearing Survey.

No.92 measuring 22 acres 5 guntas situated at

Gadisomanala village, Muddebihal Taluk, Bijapur District

belongs to one Sri Vishwanath, son of Gurunath Sarvade.

It is the case of the petitioners that father of the petitioner

No.4 was managing and cultivating the land in question

and the name of the petitioners have been continued in

the record of rights. In order to ascertain whether the land

has been tenanted or not under Section 2(34) of the Act, I

have carefully considered the record of rights for the

period 1964-65 which reads as follows:

"²zÁæªÀÄ¥Àà §¸À¥Àà vÀAUÀqV À FvÀ£ÀÄ 500 gÀÆ¥Á¬Ä CªÁUÁ ¯ÁªÀtÂ PÉÆlÄÖ ZÁ®Ä ¸Á°¤AzÀ £Á®ÄÌ ¨É¼É GAqÀÄ ©qÀÄªÀ PÀgÁj¤AzÀ ¸ÁzÁ gÉÊvÀ ªÀ¢ð vÁ 09.06.64."

6. The aforementioned RTC extract would indicate

that, father of the petitioners was in cultivation of the land

considered the finding recorded by Tribunal which clearly

establishes the fact that the father of the petitioners is not

a tenant in terms of Section 2(34) of the Act. Hence, the

Land Tribunal, rightly, rejected the application made by

the father of the petitioners and therefore, is not entitled

for occupancy rights under the Act. The said aspect has

been considered by the Land Tribunal in detail. It is also

useful to follow the law declared by Division Bench of this

Court in the case of Parayya Irayya Mathapathi vs. The

Land Tribunal, Bijapur and others reported in ILR

1979 KAR 2241. paragraph 7 of the judgment reads as

under:

"7. Under the deed, respondent No.3 has taken possession of the lands from the appellant agreeing to render the land fit for cultivation, improve the existing wells, cultivate them and take all the usufruct thereof for a period of 12 years without paying any premium or rent to the owner of the lands and redeliver them after the stipulated time. Such a document without applying any of the rules of construction of documents, can only be construed as a "GAqÀÄ ©qÀÄªÀ PÀgÁgÀÄ", that being the term that is in vogue in the Bombay Karnataka area or a 'E½ ¨sÉÆÃUÀå' Bogya" that is vague in the old Mysore Area. As held by Venkataramaiah. J., in Veerappa Rudrappa Algawadi's case, with which we are in agreement. GAqÀÄ ©qÀÄªÀ PÀgÁgÀÄ is in the nature of an 'E½ ¨sÉÆÃU' or a self redeeming mortgage and that during or after the expiry of the term stipulated in such a deed, the person in possession will not be a tenant and therefore the provisions of the Act can have no application to such cases."

(Emphasis supplied)

7. Following the law declared by Division Bench

and applying to the facts on hand, I am of the view that

the Tribunal rightly rejected the application made by the

father of the petitioners claiming occupancy rights. I have

also noticed from the records, which reads as under:

"............... ±ÁAvÁgÁªÀÄ «±Àé£ÁxÀ ¸ÀgÉÆzÉÉ ¸Á:vÁ½ÃPÉÆÃmÉ EªÀjUÉ, PÀ¨ÁÓ ¥ÁªÀw ¨É¹ä:- ²zÀg À ÁªÀÄ¥Àà vÀAUÀqV À ¸Á:- UÀr¸ÉÆÃªÀÄ£Á¼À §gÀPÉÆqÀÄªÀ PÀ¨ÁÓ ¥ÁªÀw K£ÉAzÀg:É

UÀr¸ÉÆÃªÀÄ£Á¼À UÁæªÀÄzÀ ¸À.£ÀA§gï 92 £Á£ÀÄ GAqÀÄ ©qÀ°PÉÌ (E¼ÀªwÀ vÛ j À ÃPÀ) »rzÉzÉÝ. ¸Àzg À À ªÁAiÀÄÝ ªÀÄÄVzÀPÁgÀt F ªÉÆzÀ®Ä d«ÄÃ£À ¤ªÀÄä PÀ¨ÁÓPÉÌ PÉÆnÖgÀÄvÉÃÛ £É. ¸ÀzgÀ d«ÄÃ£ÀzÀ ªÉÄÃ¯É £À£ÀßzÀÄ AiÀiÁªÀ vÀgºÀ z À À ºÀPÀÆÌ ªÀiÁ°ÌÃ, (gÉÊvÀ) CAvÁ ¸ÀºÀ ¬ÄgÀÄªÀ¢¯Áè. £ÀªÀÄä ¤ªÀÄäzÀÄ AiÀiÁªÀ ¨ÁQ¬ÄgÀÄªÀÅ¢®è CAvÁ §gÀPÉÆlÖ PÀ¨ÁÓ ¥ÁªÀw. ¸À» vÁjÃR 04.09.1974 ¬Ä¹é

zÀ: ²æ ºÀj UÉÆÃ«AzÁgÁªÀ PÉÆ.¸À®ÆrV."

Though the learned counsel appearing for the

petitioner emphasized on Section 24 of the Act and the

judgment of this Court referred by him, however, on

perusal of the aforementioned judgment would indicate

that the Section 24 of the Act modifies the provisions of

Section 111 of the Transfer of Property Act, insofar as

agricultural lands are concerned, to the extent it declares

that the tenancy in the circumstances referred to therein

would be in abeyance during the period of mortgage

subsists. On the other hand, the judgments referred to by

the learned counsel are not applicable to the case on hand

since the true effect of Section 26 of the Act is that the

anterior lease of agricultural land would not become

extinct by reason of the creation of mortgage in favour of

the tenant but would become dormant. The said principle

on application to the facts on hand, and on perusal of the

record particularly, the aforementioned undertaking of the

tenant on 04.09.1974 would establish the fact that the

petitioner's father, has given back the possession of the

land in question to the respondents pursuant to the

completion of the period of "GAqÀÄ ©qÀÄªÀ PÀgÁgÀÄ". In that view

of the matter, none of the judgments referred to by the

learned counsel appearing for the petitioner is applicable to

the facts on record. I have also noticed that though the

RTC extracts for the year 1964-65 evidencing the

mortgage under "GAqÀÄ ©qÀÄªÀ PÀgÁgÀÄ" with stipulated period of

four years however, the father of the petitioner or the

petitioner have taken steps to rectify the same to urge that

they are the tenants under the Act and in that view of the

matter, I do not find acceptable grounds to interfere with

the impugned order passed by the Land Tribunal. In view

of the aforementioned finding establishing that the

petitioners have released the land in favour of the father of

the petitioner as per undertaking letter 04.09.1974, I am

of the view that the Tribunal is justified in rejecting the

application made by the father of the petitioner. It is also

the argument of Sri Ashok R. Kalyanshetty that the

respondents have not examined the tenant and the said

aspect cannot be a basis to allow the writ petition or

remanding the matter by setting aside the impugned order

passed by the Land Tribunal as the question involved in

this writ petition is a legal issue whether the father of the

petitioner or the petitioner is a tenant under the provisions

of the Act. For forgoing reasons, I do not accept the

submission of the learned counsel for the petitioner as the

letter dated 04.09.1974 would leans towards the argument

of Sri Harshavardhan R. Malipatil, learned counsel

appearing for the contesting respondents that the

possession of the land in question has been handed over to

them pursuant to the execution of the same.