Karnataka High Court
Lakshman vs The State Of Karnataka By Its Secy ... on 28 June, 2023
Bench: S.Vishwajith Shetty
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WP No. 27103 of 2005
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
WRIT PETITION NO. 27103 OF 2005 (LR)
BETWEEN:
1. LAKSHMAN S/O RAMA RAGHOJICHE,
SINCE DECEASED BY HIS LR'S.
1(a) SMT. SOUNDRAYA W/O LAXMAN RAGHOCHE,
AGE. MAJOR, OCC. AGRICULTURE.
1(b) RAJARAM S/O LAXMAN RAGHOCHE,
AGE. MAJOR, OCC. AGRICULTURE.
1(c) GANAGRAM S/O LAXMAN RAGHOCHE,
AGE. MAJOR, OCC. AGRICULTURE.
1(d) ASHOK S/O LAXMAN RAGHOCHE,
AGE. MAJOR, OCC. SERVICE.
Digitally signed
by RAKESH S
HARIHAR
Location: High
2. MAHADEV S/O RAMA RAGHOJICHE,
RAKESH
S
Court of
Karnataka, SINCE DEAD BY HIS LR'S.
Dharwad
HARIHAR Date:
2023.07.04
11:04:32
+0530 2(a) VINOD S/O MAHADEV RAGHOJICHE,
AGED ABOUT 32 YEARS, R/O. NANDIHALLI,
TALUK & DIST. BELGAUM.
2(b) SUDHIR S/O MAHADEV RAGHOJICHE,
AGED ABOUT 23 YEARS, R/O. NANDIHALLI,
TALUK & DIST. BELGAUM.
2(C) SIDDRAY S/O MAHADEV RAGHOJICHE,
AGED ABOUT 30 YEARS, R/O. NANDIHALLI,
TALUK & DIST. BELGAUM.
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3. NINGAPPA S/O RAMA RAGHOJICHE,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. NANDIHALLI VILLAGE,
TALUK & DIST. BELGAUM.
4. NAGAPPA S/O RAMA RAGHOJICHE,
SINCE DECEASED BY HIS LR'S.
4(a) SMT. BABY W/O NAGAPPA RAGHOCHE,
AGE. MAJOR, OCC. HOUSEHOLD.
4(b) RAMA S/O NAGAPPA RAGHOCHE,
AGE: MAJOR, OCC: AGRICULTURE.
4(a) UTTAAM S/O NAGAPPA RAGHOCHE,
AGE: MAJOR, OCC: AGRICULTURE.
4(a) AMRUTA D/O NAGAPPA RAGHOCHE,
AGE: MAJOR, OCC: NIL.
ALL ARE RESIDENTS R/O. NANDIHALLI VILLAGE,
TALUK & DIST. BELGAUM.
... PETITIONERS
(BY SRI. SUNIL S DESAI, ADVOCATE FOR P1(a-d) & R4(a-d);
SRI. C H JADHAV, ADVOCATE FOR P2(a-c) & R3)
AND:
1. THE STATE OF KARNATAKA,
BY ITS SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT, M.S. BUILDING,
BANGALORE-560001.
2. THE ASSISTANT COMMISSIONER,
BELGUAM SUB-DIVISION, BELGAUM.
3. RAMACHANDRA S/O RAMACHANDRA KITTUR,
SINCE DECEASED REPRESENTED BY HIS LR'S.
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3(a) VISHNU S/O RAMACHANDRA KITTUR,
SINCE DECEASED BY HIS LR'S.
3(a)(i) PRASAD S/O VISHNU KITTUR,
AGE. MAJOR, OCC. NOT KNOWN,
R/O. BUDAGAON, TQ. MIRAJ,
DIST. SANGLI-416304(MH).
3(a)(ii) PREETI W/O H SATTIGERI,
R/O. SHIVATEERTHA COLONY, PLOT NO.46,
M M EXTENSION, BELAGAVI.
3(b) RAMESH S/O RAMACHANDRA KITTUR,
SINCE DECEASED BY HIS LR'S.
3(b)(i) SHWETA D/O RAMESH KITTUR,
AGE. MAJOR, OCC. HOUSE WIFE,
R/O. F1/011 AND 012, TRIVENI-LOKGRAM,
CHS ITD KALAYAN EST,
DIST. THANE MAHARASTRA.
3(c)(ii) HEMA D/O RAMESH KITTUR,
AGE. MAJOR, OCC. ,
R/O. F1/011 AND 012, TRIVENI-LOKGRAM,
CHS ITD KALAYAN EST,
DIST. THANE MAHARASTRA.
3(c) MAHESH S/O RAMACHANDRA KITTUR,
AGE. MAJOR, OCC. NOT KNOWN,
R/O. 217/5, GANESH MARG, HINDWADI,
DIST. BELGAUM.
3(d) KAMALA W/O G KULKARNI,
AGE. MAJOR, OCC. HOUSE WIFE,
R/O. 217/5, GANESH MARG, HINDWADI,
DIST. BELGAUM.
3(e) RUPA W/O S KULKARNI,
AGE. MAJOR, OCC. HOUSE WIFE,
R/O. H.NO. 217/5H, GANESH MARG 3, HINDWADI,
BELAGAVI-11.
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4. SMT. GIRIJA W/O BALACHANDRA KITTUR,
SINCE DECEASED REPRESENTED BY HIS LR'S.
4(a) DATTAPRASAN S/O BALACHANDRA KITTUR,
AGE. MAJOR, OCC. AGRICULTURE.
4(b) SUNITA W/O N NAIK,
AGE. MAJOR, OCC. HOUSE WIFE.
4(c) RENUKA W/O V TAVILDAR,
AGE. MAJOR, OCC. HOUSE WIFE.
ALL ARE RESIDENTS OFF: R/O. C/O. N.S NAIK,
GULMOHAR COLONY, BHAGYA NAGAR, 9TH CROSS,
DIST. BELGAUM.
5. SRI. HANAMANT S/O NARSIMHA KITTUR,
SINCE DECEASED REPRESENTED BY HIS LR'S.
5(a) UMA KITTUR,
AGE. MAJOR, OCC. HOUSE HOLD,
R/O. H.NO. 217/5H, GANESH MARG 3, HINDWADI,
BELAGAVI.
5(b) DATTRAYA S/O HANAMANT KITTUR,
AGE. MAJOR, OCC. NOT KNOWN,
R/O. H.NO. 217/5H, GANESH MARG 3, HINDWADI,
BELAGAVI.
5(c) NEETA W/O R PATKI,
AGE. MAJOR, OCC. HOUSE HOLS,
R/O. SUNJAR APARTMENT 'PRADNYA BUILDINGS'
NEAR BHAGINI, NIVEDITA KARVE NAGAR, PUNE.
6. SMT. MALATHI W/O JEEVANRAO KITTUR,
SINCE DECEASED REPRESENTED BY HIS LR'S.
6(a) ARAVIND S/O JEEVANRAO KITTUR,
AGE. MAJOR, OCC. NOT KNOWN.
6(b) RAJENDRA S/O JEEVANRAO KITTUR,
AGE. MAJOR, OCC. NOT KNOWN.
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WP No. 27103 of 2005
BOTH ARE RESIDENTS OFF: R/O. "KEDAR"
NEAR NTTF, RAM NAGAR, 3RD CROSS , DHARWAD.
6(c) SANGEETA W/O R NAIK,
AGE. MAJOR, OCC. HOUSEWIFE,
R/O. 'ANUGRAHA CLINIC',
POST. DEVAR HIPPARGI, DIST. VIJAYPUR.
6(d) GEETA W/O R DESHPANDE,
AGE. MAJOR, OCC. HOUSEWIFE,
R/O. NEAR GANDHI CHOUK,
POST & TALUK. MUDALAGI,
DIST. BELAGAVI.
... RESPONDENTS
(BY SRI. VINAYAK S KULKARNI, AGA FOR R1 & R2 ;
SRI. SURABHI KULKARNI, ADVOCATE FOR R3(a)(i),
R3(a)(ii), R3(b)(i), R3(b)(ii), R3(c-e) & R6(a-d))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT, ORDER OR DIRECTION, IN THE NATURE OF
CERTIORARI, QUASHING THE ORDER DATED 30.12.2004
PASSED BY THE KARNATAKA APPELATE TRIBUNAL IN APPEAL
NO.535/2003 (BELGAUM CAMP) PRODUCED AT ANNEXURE-C.
THIS PETITION, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 27103 of 2005
ORDER
1. This writ petition is filed by the petitioners
assailing the order at Annexure-C dated 30.12.2004
passed by the Karnataka Appellate Tribunal (for short, 'the
KAT') in appeal No.535 of 2003.
2. Heard the learned counsel for the parties.
3. Facts leading to filing of this writ petition are;
the predecessor of the petitioners Rama Lakshman
Nagojiche was a protected tenant of the lands bearing
Sy.No.273 measuring 15 acres 39 guntas and Sy.No.271
measuring 2 acres 29 guntas situated at Nandihalli village
of Belagavi Taluk and District. The entries in the revenue
records of the lands in question stood in the name of the
said Rama Lakshman Nagojiche right from the year 1948
onwards till the year 1971 and after the death of the
original tenant, the entries continued in the name of the
petitioner's father. In a proceeding initiated under the
provisions of the Karnataka Land Reforms Act, 1961 (for
short, 'the Act of 1961') for surrender of the lands in
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question, the Land Tribunal had passed an order on
17.06.1969 in respect of 8 acres of land in Survey No.273
and pursuant to the said order, the entries in respect of
the lands in question were transferred in the name of the
landlords as per the orders passed in proceeding bearing
M.E.No.3070. It is the case of the petitioners that, though
such an order was passed by the Tribunal, the lands in
question were not surrendered to the landlords and
tenants continued in possession and cultivation of said
lands as and 01.03.1974 and even immediately prior to
said date. However, they had not filed Form No.7 claiming
occupancy rights of the lands in question. Thereafter, on
10.02.1992, petitioners had entered into an agreement for
sale with the respondent-landlords for sale consideration
of Rs.2,50,000/- and under the agreement for sale, the
petitioners allegedly had paid a total sum of Rs.1,55,000/-
to the respondent-landlords. However, thereafter
respondent-landlords had not executed the sale deed in
favour of the petitioners. After coming into force of Section
77-A of the Act of 1961, the petitioners had filed Form
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No.7-A dated 21.12.1998 with a prayer to register them as
occupants of the lands in question. The Competent
Authority vide order Annexure-A had allowed the claim of
the petitioner Nos.2 to 4 and had registered them as the
occupants of the lands in question. Being aggrieved by the
said order at Annexure-A dated 16.12.2002, respondent-
landlords had filed an Appeal before the KAT in appeal
No.535 of 2003, which was allowed by the Tribunal on
30.12.2004. Challenging the same, the petitioners are
before this Court.
4. Learned counsel for the petitioners submits that
the Appellate Tribunal had erred in setting aside the well
considered and reasoned order passed by the Competent
Authority. He submits that there is absolutely no material
to show that the lands which are subject matter of Form
No.7-A were surrendered by the tenants in favour of the
landlords. He submits that the subject matter of surrender
order was only 8 acres of land in Sy.No.273 and in spite of
the same, the landlords had managed to get the revenue
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records changed in their names in respect of entire extent
of 18 acres 28 guntas in the lands in question. He submits
that after coming into force of the Act No.1 of 1974, the
Competent Authority had passed an order under Section
44 of the Act of 1961 on 02.12.1974, holding that the
lands in question vested with the State Government. He
submits that all these aspects of the matter have not been
appreciated by the Appellate Authority. In support of his
arguments, he has placed reliance on the following
judgments:
i. State of Karnataka and Ors. Vs.Uppegouda and
Ors. reported in (1997) 3 SCC 593
ii. Puttegowda Vs.State of Karnataka and others
reported in AIR 1980 Karnataka 102
iii. Shri.Mallappa Bhimanna Katti Vs.The Land
Tribunal, Sindagi and Others reported in ILR 1979
Karnataka 1937
5. Per contra, learned counsel appearing for the
respondent-landlords submits that Appellate Tribunal has
recorded a finding that the lands in question had not
vested with the State, on the basis of the earlier orders
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passed by the Land Tribunal, wherein the claim made by
other tenants in respect of the very same land, was
considered and rejected by the Land Tribunal. She submits
that Form No.7-A could be maintained only in respect of
the lands which had vested in the State under Section 44
of the Act of 1961 and not otherwise. In support of her
arguments, she has placed reliance on the judgment of the
Full Bench of this Court in the case of Lokayya Poojary
and Another Vs.State of Karnataka and Others
reported in ILR 2012 Kar 4345. She also submits as per
the admitted documents, it is very clear that the
possession was handed over subsequent to the order of
surrender passed by the Competent Authority and
thereafter the revenue records were changed in the name
of the landlords, which were undisputedly not questioned
by the petitioners. Accordingly, she prays to dismiss the
writ petition.
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6. I have given my anxious consideration to the
arguments addressed on both the sides and also perused
the material record.
7. Undisputedly, the lands in question were
originally tenanted lands and petitioners' predecessor one
Sri. Rama Lakshman Nagojiche was a protected tenant
and his name was entered in the revenue records of the
lands in question, wherein, he was referred to as protected
tenant. After his death, said entries was continued in the
name of the petitioners' father. The records would reveal
that the entries in the revenue records of the lands in
question stood in the name of Rama Lakshman Nagojiche
and thereafter entered the names of petitioners' father
right from 1948 to 1971. It is on the strength of the order
of surrender passed by the Competent Authority, the
revenue entries in respect of the lands in question was
changed in the name of the landlords in the year 1971 as
per the order passed in proceeding bearing ME No.3070.
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8. The material on record would go to show that
the order of surrender was passed only in respect of 8
acres of land in Sy.No.273. However, entries in revenue
records earlier standing in the name of the tenants, in
respect of entire extent of land in Sy.Nos.273 and 271,
was changed in the name of the landlords, though
surrender was in respect of only 8 acres of land in
Sy.No.273. The material on record would go to show that
after coming into force of the Act No.1 of 1974, the
Competent Authority has passed an order in proceedings
bearing No.3306 exercising his power under Section 44 of
the Act of 1961, holding that the lands in question stood
vested with the State Government. This order dated
02.12.1974 remains unchallenged till date.
9. The Competent Authority while considering
Form No.7-A filed by the petitioners, has referred to the
said order. However, it appears that the Appellate Tribunal
has not considered the order of vesting which was passed
on 02.12.1974. The Appellate Tribunal has proceeded to
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record a finding that the lands which were subject matter
of claim in Form No.7-A did not stand vested with the
State Government, on the basis of the earlier orders
passed by the Land Tribunal in the proceedings which were
initiated on the basis of the claim made by some other
tenants in respect of the very same lands.
10. The Hon'ble Supreme Court in the case of
Uppegouda and Ors. (supra) at paragraph 10 has
observed as follows:
"10. In this case, the land holder has
merely asserted that the tenant had surrendered
the land and entries in revenue records were
received in support thereof. It is easy to have
the entries made with the assistance of patwari
who had exclusive custody of the records. The
object of the Tenancy Act is to protect the
tenants to remain in possession and enjoy it
subject to compliance of the provisions of the
Tenancy Act. Contracted tenancy come to an end
and statutory tenancy sets in operation and so
he would be liable for ejectment only on proved
grounds of statutory contravention, the entries of
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revenue records are self serving. There was no
order of a competent authority of eviction of
tenant for contravention of the above mentioned
grounds. The proviso, though enables a landlord
to obtain possession on surrender, it must be
proved strictly, as several devices would be used
to circumvent the beneficial provision and
illiteracy and ignorance of the tenant would be
taken advantage of. There is no proof of eviction
of the tenant. The stand taken by the land-
holder is not supported by legal setting. The High
Court committed grave error of low. Accordingly
the judgment of the High Court is not correct in
law and stands set aside."
11. In the case of Shri Mallappa Bhimanna Katti
(supra), the Division Bench of this Court at paragraphs
12 and 13 has observed as follows:
"12. In Ranga Rao Rama Rao Deshpande
vs. Channappa Basappa, Sadananda Swamy, J.
(as he then was), said that if during the
continuance of a lease, the lessee enters into an
agreement with the lessor for purchase of the
demised premises, the right of the lessee under
the lease does not merge with the right that he
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may have acquired under such agreement of
sale. The same view was taken by Lodha, J. (as
he then was), in Banshilal vs. Noor Mohamad,
His Lordship observed that a lease cannot be
said to have been determined merely by
execution of an agreement to sell as it is well
known that by mere execution of an agreement
to sell, there is no transfer of interest in the
property. We are in agreement with the views
expressed in these cases.
13. In the present case, the lease
executed by respondent No.2 in favour of the
petitioner on 24.03.1964 was a valid lease. By a
series of enactments made by the Legislature
commencing from the Karnataka Tenants
Temporary Projection from Eviction Act, 1961
culminating in the L.R. Act, the rights of the
tenants to continue in occupation of the
leasehold agricultural lands have been protected
and therefore the petitioner has continued to be
in possession of the land as a tenant of
respondent No.2 as on 01.03.1974 which is also
the finding of fact recored by the Tribunal.
Before the Tribunal, the only legal contention
that was urged by respondent Nos.2 and 3 was
that the leasehold rights or tenancy rights had
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merged on the execution of the agreement to
sell dated 06.06.1966 which we have found to be
not legally sustainable. Except for this,
respondent Nos.2 and 3 did not raise any other
objection that requires to be investigated and
decided by the Land Tribunal for granting
occupancy rights to the petitioner. For these
reasons, we are of the opinion, rejection by the
Tribunal of the claim of the petitioner for being
registered as occupant was, manifestly
erroneous. We, therefore, allow the petition,
quash the order dated 22.04.1976 of the Land
Tribunal in Case No.KLR.SR.19, and remit the
case to the Land Tribunal to decide it afresh in
accordance with law and in the light of our above
observations."
12. In the case of Puttegowda (supra) at
paragraph 7, this Court has observed as follows:
"7. The learned single Judge relied
on Maneksha Ardeshir v. Manekji Edulilji Mistry
and S. 44(1) of the Act in support of his finding
that the order of surrender determined the
relationship of landlord and tenant. We will take
up Section 44(1) of the Act first.
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Sub-section (1) of Section 44 of the Act reads:
'Vesting of land in the State Government - (1) All
lands held by or in the possession of tenants
(including tenants against whom a decree or
order for eviction or a certificate for resumption
is made or issued) immediately prior to the date
of commencement of the Amendment Act, other
than lands held by them under leases permitted
under Section 5, shall, with effect on and from
the said date, stand transferred to and vest in
the State Government."
It enumerates the types of land that vest in the
State Government as on 1-3-1974. The learned
single Judge has found that the lands not
surrendered notwithstanding the permission to
surrender, do not find a place in Section
44(1) and so such lands are not tenanted lands
for granting occupancy rights tinder Section. 45
of the Act. In our view, the words "lands held by"
(Underlining by us) are wide enough to cover
lands not surrendered in spite of permission to
do so but in possession of the tenant
immediately before 1-3-1974, and therefore, the
construction put on Section 44(1) the learned
single Judge, does not appear to us to be
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correct. Even the decision of the Supreme Court
under the Bombay Tenancy and Agricultural
Lands Act referred to above, does not support
the view taken by the learned single Judge. That
'was not a, case in which tenant continued to be
in possession of the land after obtaining
permission to surrender. The deletion of Section
25 as it stood then by Amendment Act 1 of 1974.
Without providing for a saving clause for the
operation of surrender orders obtained by
landlords under the earlier provision lends
supports by the tenant does not put an end to
the relationship of landlord and tenant.
Further, it may also be noticed that under
Section 111 of the T. P. Act, tenancy of
immoveable property is determined, inter alia,
by express surrender, that is to say, in case the
lessee yields up his interest under the lease to
the lessor, or, by implied surrender.
As stated in Halsbury's Laws of England Volume
23 (3rd Edn.) at page 635, delivery of possession
by the tenant to the landlord and his acceptance
of possession, are essential to effect the
surrender. In the present case, it has not been
proved that the appellant had delivered
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possession of the land notwithstanding grant of
permission to surrender- As we have found that
the appellant was in possession even after the
grant of permission to surrender, he must be
held to have continued to be a tenant and was
entitled to grant of occupancy right, and
therefore the question of remand also does not
arise."
13. The question whether pursuant to an order of
surrender, there was an actual surrender of the land by
the tenants was not considered either by the competent
authority or by the appellate authority. The judgment in
the case of Lokayya Poojary and another on which
reliance has been placed by the learned counsel for the
respondent-landlords would not be of any aid to this case,
because in the present case, there is a material available
on record evidencing that the lands which were subject
matter of the claim in Form No.7A stood vested in the
State. The order of vesting passed by the competent
authority on 02.12.1974, which is available on record is
not questioned by anybody till date. Therefore, it cannot
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be said that there is no material to show that the lands
which are subject matter of claim in Form No.7A, stood
vested with State with effect from 01.03.1974.
14. The Appellate Authority has set aside the order
passed by the competent authority placing reliance on
certain earlier orders passed by the Land Tribunal, wherein
a finding is recorded that the lands in question had not
vested with the State. However, the order of vesting which
was passed on 02.12.1974 in proceedings bearing M.E.
No.3306 was not considered by the appellate tribunal.
Similarly, the competent authority had not considered the
earlier findings recorded by the Land Tribunal which were
referred to by the appellate tribunal. The question whether
the lands in question were actually surrendered to the
landlords pursuant to the order of surrender requires to be
considered in the matter and therefore, I am of the view
that the order impugned passed by the appellate tribunal
needs to be set aside and the matter has to be remitted to
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the competent authority to re-consider the matter afresh
in accordance with law. Accordingly the following:
ORDER
The writ petition is partly allowed. The impugned
order at Annexure - C passed by the Karnataka Appellate
Tribunal in Appeal No.535/2003 is modified and the matter
is remitted to the competent authority / 2nd respondent to
consider the claim of the petitioners in Form No.7-A afresh
in accordance with law after affording opportunity to both
the parties and if necessary, also permit them to lead
additional evidence.
Sd/-
JUDGE
Kgk & Rsh/Ct:Bck
