Karnataka High Court

Smt Nafeeza W/O Mohammed Since Dead By ... vs State Of Karnataka on 13 February, 2025

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 13TH DAY OF FEBRUARY, 2025

                           PRESENT

         THE HON'BLE MRS. JUSTICE ANU SIVARAMAN

                             AND

        THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

            WRIT APPEAL NO.1276 OF 2022 (LR)

BETWEEN:

1.      SMT. NAFEEZA
        W/O MOHAMMED
        SINCE DEAD BY LRS
        VIDE ORDER DATED 01-04-2021
        APPELLANTS 1(a) TO 1(i), THE LRS OF
        1ST PETITIONER

1(a). SMT. KHATEEJA
      W/O MOHIDEEN
      AGED 54 YEARS

1(b). SMT. SAFIYA
      W/O LATE YOUSUF
      AGED 52 YEARS

1(c).   SMT. FATHIMA
        W/O LATE YOUSUF
        AGED 50 YEARS

1(d). SMT. AYESHA
      W/O ABOOBAKER
      AGED 47 YEARS

1(e). SRI. UMAR FAROOQ
      S/O MOHAMMED
      AGED 43 YEARS
 -

                              2




1(f).   SMT. SAKEENA
        W/O RAVOOF
        AGED 40 YEARS

1(g). SRI. ABDUL KHADER
      S/O MOHAMMED
      AGED 38 YEARS

1(h). SRI. YAHYA
      S/O MOHAMMED
      AGED 36 YEARS

1(i).   SRI. ABDUL BASHEER
        S/O MOHAMMED
        AGED ABOUT 34 YEARS

        APPELLANTS 1(a) TO 1(i) ARE
        RESIDING AT VEERAKAMBA VILLAGE
        BANTWAL TALUK
        DAKSHINA KANNADA DISTRICT

2.      SRI. ABBAS BEARY
        S/O UMAR BEARY
        AGED 76 YEARS
        R/O. KUKKILA HOUSE
        VITTALAPADNUR VILLAGE
        BANTWAL TALUK
        DAKSHINA KANNADA DISTRICT

3.      SMT. AVAMMA
        W/O LATE IBRAHIM BEARY
        AGED 69 YEARS,

4.      SMT. SELMA
        D/O LATE IBRAHIM BEARY
        AGED 48 YEARS

5.      SMT. B. FATHIMA
        D/O LATE IBRAHIM BEARY
        AGED 47 YEARS
 -

                              3




6.    SMT. NABISA
      D/O LATE IBRAHIM BEARY
      AGED 45 YEARS

7.    SMT. ALIYAMMA
      D/O LATE IBRAHIM BEARY
      AGED 39 YEARS

8.    SRI. MOHAMMED HANEEF
      S/O LATE IBRAHIM BEARY
      AGED 39 YEARS

9.    SRI. UMAR FAROOQ
      W/O LATE IBRAHIM BEARY
      AGED 38 YEARS

10.   SMT. MAHAMMED JAMAL
      S/O LATE IBRAHIM BEARY
      AGED 28 YEARS

11.   SRI. USMAN
      S/O LATE IBRAHIM BEARY
      AGED 33 YEARS

      APPELLANTS No.3 TO 11 ARE
      R/O. VITLA PADANUR VILLAGE
      KODAPADAVU
      BANTWAL TALUK-574 222
      DAKSHINA KANNADA DISTRICT

12.   SRI. SHEKALI BAVUDDIN
      SINCE DECEASED BY HIS LRS.,
      VIDE COURT ORDER DATED 14.11.2019
      LRS 12(a) TO (h) ARE IMPLEADED

12(a). SMT. BEFATHUMMA
       W/O SHEKALI BAVUDDIN
       AGED 65 YEARS

12(b). SMT. JAMEELA
       D/O SHEKALI BAVUDDIN
       AGED 50 YEARS
 -

                              4




12(c). SMT. ASMA
       D/O SHEKALI BAVUDDIN
       AGED 48 YEARS

12(d). SRI. UMAR FAROOQ
       S/O SHEKALI BAVUDDIN
       AGED 46 YEARS

12(e). SRI YUSUF HYDER
       S/O SHEKALI BAVUDDIN
       AGED 40 YEARS

12(f). SMT. RAHAMTH BIBI
       D/O SHEKALI BAVUDDIN
       AGED 38 YEARS

12(g). SRI. ABUBEKKAR SIDDIQUI
       S/O SHEKALI BAVUDDIN
       AGED 30 YEARS

12(h). SMT. ZEENATH BIBI
       D/O SHEKALI BAVUDDIN
       AGED 28 YEARS

      APPELLANTS No.12(a) TO 12(h) ARE
      R/AT. VEERAKAMBA VILLAGE
      BANTWAL TALUK
      DAKSHNA KANNADA DISTRICT

13.   SRI. YOUSUF SHAFFI
      S/O UMAR BEARY
      SINCE DECEASED BY HIS LRS
      AS PER THE ORDER DATED 22.06.2022
      LRs., OF THE APPELLANTS 13(a) TO (j) ARE IMPLEADED

13(a). SMT. JAINABI
       W/O YOUSUFF SHAFFI
       AGED ABOUT 68 YEARS

13(b). SRI. UMMAR SHAFFI
       S/O YOUSUFF SHAFFI
       AGED ABOUT 50 YEARS
 -

                              5




13(c). SRI. MOHAMMED RAFFIQ
       S/O YOUSUFF SHAFFI
       AGED ABOUT 50 YEARS

13(d). SMT. SALMA
       D/O YOUSUFF SHAFFI
       AGED ABOUT 47 YEARS

13(e). SRI. YAS ILIYAS
       S/O YOUSUFF SHAFFI
       AGED ABOUT 44 YEARS

13(f). SRI. MOHAMMED MUSTAFFA
       S/O YOUSUFF SHAFFI
       AGED ABOUT 42 YEARS

13(g). SMT. MUNEERA
       D/O YOUSUFF SHAFFI
       AGED ABOUT 40 YEARS

13(h). SMT. AMRATH
       D/O YOUSUFF SHAFFI
       AGED ABOUT 39 YEARS

13(i). SRI. KALANDAR SHAFFI
       S/O YOUSUFF SHAFFI
       AGED ABOUT 37 YEARS

13(j). SMT. KAMRUNNISA
       D/O YOUSUFF SHAFFI
       AGED 35 YEARS,

      APPELLANTS No.13(a) TO 13(j) ARE
      RESIDENTS OF VITLA PADANUR VILLAGE
      KODAPADAVU, BANTWAL TALUK
      DAKSHNA KANNADA DISTRICT

14.   SMT. ISAMMA
      D/O LATE UMAR BEARY
      AGED 70 YEARS
      RESIDENT OF BARIMARU VILLAGE
      BANTWAL TALUK-574 222
 -

                           6




       DAKSHNA KANNADA DISTRICT
                                              ...APPELLANTS

(BY SRI. MADHUSUDAN R. NAIK, SENIOR ADVOCATE FOR
    SRI. ABDULLA T.I., ADVOCATE)

AND:

1.   STATE OF KARNATAKA
     REPRESENTED BY ITS PRINCIPAL SECRETARY
     REVENUE DEPARTMENT
     MULTISTOREIED BUILDING
     DR. AMBEDKAR VEEDHI
     BENGALURU-560 001

2.   THE ASSISTANT COMMISSIONER
     MANGALURU SUB-DIVISION
     MANGALURU

3.   THE TAHASILDAR
     BANTWAL TALUK
     BANTWAL-574 222
     DAKSHINA KANNADA DISTRICT

4.   LT. COL. DIWANA GOPALA KRISHNA BHAT
     S/O SUBRAYA BHAT
     AGED 80 YEARS
     R/O. DOOR No.1-191/1
     ARADHANA, DARBE
     PUTTUR-574 202
     DAKSHINA KANNADA DISTRICT
                                           ...RESPONDENTS
(BY SRI. DEVARAJ C.H., GA FOR R1 TO R3;
    SRI. SHRIDHAR PRABHU, ADVOCATE FOR CAVEATOR/R4)


    THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER OF THE
LEARNED SINGLE JUDGE DATED 16TH DAY OF NOVEMBER 2022
PASSED IN WP No.3420/2013 (LR) AND ETC.
 -

                             7




      THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 23.01.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN
J., PRONOUNCED THE FOLLOWING:

CORAM:    HON'BLE MRS. JUSTICE ANU SIVARAMAN
          and
          HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

                     CAV JUDGMENT

(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)

This writ appeal is filed by the appellants/petitioners

challenging the order of the learned Single Judge passed in

Writ Petition No.3420/2013 dated 16.11.2022.

2. We have heard Shri Madhusudan R. Naik, learned

senior counsel as instructed by Advocate Shri T.I. Abdulla,

appearing for the appellants, Shri Devaraj.C.H, learned

Government Advocate appearing for respondents No.1 to 3

and Shri Shridhar Prabhu, learned counsel appearing for

caveator/respondent No.4.

3. It is submitted by the learned senior counsel

appearing for the appellants that the appellants' ancestors,

including their grandfather and father-Late Umar Beary,

were tenants of the petition schedule lands since 1923. In

the year 1940, the land was purchased by Subraya Bhat,

father of the fourth respondent. Despite the change in

ownership, Late Umar Beary continued as a tenant under

the new landlord, including after Subraya Bhat's demise in

the year 1940, when the tenancy was maintained by his

widow and later by their eldest son, Bhim Bhat. After the

death of Umar Beary, his seven children divided and

cultivated the lands, paying rent by way of share of

Arecanut to Bhim Bhat, who is the elder brother of the

fourth respondent until 1973. With the Karnataka Land

Reforms Act's amendment effective from 01.03.1974 ('the

Act' for short), the seven children filed Form No.7 for grant

of occupancy rights. The Land Tribunal, Bantwal, granted

occupancy rights in favour of seven children. The fourth

respondent and his elder brother challenged the order of the

Land Tribunal and filed a writ petition. The matter was

transferred to the Land Reforms Appellate Authority (LRAA),

which set aside the decision of the Tribunal.

4. It is submitted that similarly, another tenant,

Mahalinga Bhat, and his family, who had applied for

occupancy rights under the same amendment, faced

identical proceedings. Their appeal was clubbed with the

appellants' case and a common order was passed by the

LRAA. Aggrieved by the order passed by the LRAA, the

appellants and Mahalinga Bhat filed Land Reforms Revision

Petition (LRRP) No.1619/1990 and connected matters dated

25.08.1997. A key issue arose regarding the procedure to

entertain Form No.7 applications when the lands involved

the interest of a soldier or seaman. This Court ruled that

such disputes should first be resolved by the Tahasildar

under Section 15 of the Karnataka Land Reforms Act,

before the Tribunal considers Form No.7 applications. In the

light of this decision, the LRRPs filed by the appellants and

Mahalinga Bhat were allowed on 25.08.1997, directing the

Tahasildar to consider the application of the fourth

respondent.

5. It is submitted that pursuant to the Court's

direction, the Tahasildar resumed the petition schedule lands

in favour of the fourth respondent through an order dated

30.06.2001. Aggrieved by the same, the appellants filed an

appeal before the second respondent-Assistant

Commissioner in Appeal No.CDIS.L.R.Y.S.R.22/2010, who

set aside the third respondent-Tahasildar's order on

14.03.2002. The fourth respondent then challenged this

decision through Writ Petition No.21394/2002, before this

Court and this Court, vide order dated 02.06.2008,

remanded the matter to the second respondent-Assistant

Commissioner for fresh consideration. Upon remand, the

Assistant Commissioner disposed of the matter and

dismissed the Appeal in CDS.22/2001-2002 dated

15.11.2012.

6. It is submitted that dis-satisfied with the orders

of the Assistant Commissioner and Tahasildar, the

appellants filed Writ Petition No.3420/2013 before this

Court. The fourth respondent, after appearing and filing

objections, prompted the appellants to submit a rejoinder

supported by additional documents. The writ petition was

ultimately dismissed by the learned Single Judge on

16.11.2022. Aggrieved by the order of the learned Single

Judge, the appellants have filed the present writ appeal.

7. It is contended by the learned senior counsel

appearing for the appellants that the application filed by the

fourth respondent under Section 15 of the Act is not

maintainable in law or on facts and is liable to be dismissed

for non-compliance of Sections 5, 15, and 44 of the Act.

Section 5 explicitly prohibits tenancies after the

commencement of the Amendment Act unless created or

continued by a soldier/seaman during or shortly before his

service. The claim of the fourth respondent fails this test as

no tenancy was created by him or his family during his

service. The tenancy dates back to 1940, created by the

joint family, predating the respondent's service in 1967.

Hence, the orders of the authorities and the learned Single

Judge are contrary to the Act and liable to be set aside.

8. It is contended that the authorities and the

learned Single Judge erred in concluding that a tenancy

created by a joint family is valid for resumption by a soldier.

The Act limits such rights exclusively to tenancies created or

continued by a soldier/seaman during his service. The

finding that the fourth respondent, as a joint family

member, could claim resumption is contrary to the scheme

of the Act and the legislative intent. This misinterpretation

invalidates the impugned orders.

9. It is contended that the second

respondent/Assistant Commissioner wrongly inferred from

L.R.R.P.No.1619/1990 and connected matters dated

25.08.1997 that the lands are liable to be resumed by the

fourth respondent. This Court in the said case merely

directed that the application under Section 15 of the Act be

considered first, followed by the tenant's application under

Form No.7, no finding was rendered on the fourth

respondent's eligibility to resume the lands. The second

respondent-Assistant Commissioner's reliance on this

assumption is erroneous.

10. It is contended that Section 15(2) of the Act

mandates that a soldier or seaman seeking resumption of

land must prove a bonafide requirement for personal

cultivation and issue a notice to the tenant. The fourth

respondent failed to comply with this requirement.

Furthermore, he would not have sold portions of his allotted

share of the lands through registered sale deeds in 1978 and

1983. Apart from this during the pendency of

W.P.No.3420/2021, on 18.08.2018, the fourth respondent

sold the lands measuring 7 acres 48 cents through a

registered sale deed. These actions demonstrate a lack of

bonafide intent to personally cultivate the land, vitiating his

claim under Section 15 of the Act.

11. It is contended that the Tahasildar failed to

determine whether the fourth Respondent created or

continued the tenancy during his service, as required under

Section 15(2)(a) of the Act. This omission vitiates

jurisdiction. The decision in Koggu Narayan Shetty v. 9th

Land Tribunal reported in ILR 1992 KAR 2717

emphasizes that proof of tenancy creation or continuation by

the applicant soldier is crucial for relief under Section 15 of

the Act. The failure to address this requirement invalidates

the orders.

12. It is contended that the learned Single Judge

erroneously relied on Ningappa Avanna Astekar v. State

and others in W.P.No.24925/1990 dated 05.08.1990 to

justify resumption based on joint family tenancy,

overlooking the non obstante clause in Section 44(2) of the

Act. The Act bars the application of customary or other laws,

restricting resumption to cases strictly complying with

Sections 5(2)(a) and 15 of the Act. The reliance on this

precedent is per incuriam and contrary to legislative intent.

The Hindu customary law, as relied upon by the respondents

and the learned Single Judge, is erroneous.

13. The second and third respondents, as well as the

learned Single Judge, failed to consider the applicability of

Section 15(2) of the Act, which permits resumption of land

by a soldier or seaman only upon proving the bonafide

requirement for personal cultivation. The learned Single

Judge disregarded the binding precedents of this Court, in

the case of Miss Lilly D'Souza v. Lucy D'Souza & Others,

reported in ILR 2002 KAR 4630, which emphasizes that

bonafide requirement for personal cultivation is a condition

precedent for resumption under Section 15 of the Act.

14. The application for resumption filed by the

respondent did not comply with Rule 5 of the Karnataka

Land Reforms Rules, 1974 ('the Rules' for short). The

respondent failed to furnish complete particulars of the land

owned and possessed, which, if disclosed, would have

altered the course of the enquiry and exposed the lack of

bonafides. Furthermore, the Partition Deed executed on

10.10.1974 is invalid as the lands in question were already

vested with the Government under Section 44 of the Act.

This contention was supported by the decision in Babu

Poojari v. Assistant Commissioner reported in ILR 1995

KAR 2111, yet the learned Single Judge dismissed the

argument without adequate consideration.

15. It is contended that the learned Single Judge also

erred in upholding the findings of the third respondent, who

denied the appellants an opportunity to present their case or

produce supporting documents. Sole reliance was placed on

the testimony of a single witness. Moreover, the fourth

respondent was never involved in the proceedings from the

inception and several critical aspects were ignored as

follows:-

(a) The application under Section 15 was filed through a power of attorney holder;

(b) The fourth respondent never appeared before the authorities; and

(c) No evidence was tendered to substantiate the application. These lapses render the findings perverse and untenable.

16. It is contended that the learned Single Judge,

relying on the contention of respondent No.4, incorrectly

concluded that despite invoking Article 226 of the

Constitution of India, the writ petition should be considered

under Article 227 of the Constitution of India. This reliance

on Sadhana Lodh v. National Insurance Company

Limited reported in (2003) 3 SCC 527, is misplaced as

the said judgment explicitly distinguishes between Article

226 of the Constitution of India and 227 of the Constitution

of India and limits Article 227 of the Constitution of India to

supervisory jurisdiction. The learned Single Judge failed to

appreciate the authoritative pronouncements that governed

the issues.

17. In support of the contentions advanced, the

learned senior counsel relied on the following judgments:-

• Koggu alias Narayana Shetty v. 9th Land Tribunal, reported in ILR 1992 KAR 2717;

• Mrs. Lilly D'Souza v. Lucy D'Souza & Others, reported in ILR 2002 KAR 4630;

• Babupoojary v. Assistant Commissioner, Mangalore, reported in LAW(KAR)-1995-04-16;

• Balasaheb Venkatesh Khasbagh alias Kulkarni v. Land Tribunal, reported in ILR 1995 KAR 3898;

18. It is contended by the learned counsel appearing

for the fourth respondent that an intra-court appeal lies only

from an order/judgment passed under Article 226 of the

Constitution of India and not under Article 227 of the

Constitution of India, which involves the Court's supervisory

jurisdiction, as held by the Hon'ble Supreme Court in the

case of Shalini Shyam Shetty v. Rajendra Shankar Patil

reported in (2010) 8 SCC 329. It is contended that the

appellants did not challenge the learned Single Judge's

finding that the writ petition was under Article 227 of the

Constitution of India. The present case pertains to a

landlord-tenant dispute, and the Hon'ble Supreme Court in

Shalini Shyam Shetty's case (supra), explicitly held that

such disputes between landlord and tenant cannot attract

Article 226 of the Constitution of India. Similarly, in

Mahendra Kumar Jain v. Appellate Rent Tribunal,

Ajmer and others in D.B. Civil Reference (Larger

Bench) No.1/2020 in D.B. Special Appeal (Writ)

No.853/2019, dated 27.07.2021, the Rajasthan High

Court held that disputes adjudicated by Rent Tribunals and

the Appellate Rent Tribunal constituted under the Act of

2001, can only be challenged under Article 227 of the

Constitution of India. This decision, affirmed by the Hon'ble

Supreme Court, reinforces that no intra-court appeal lies in

such cases.

19. On merits, it is contended that all the contentions

raised by the appellants have been considered in detail by

the learned Single Judge and there is absolutely no merit in

the contentions raised in the appeal. The appellants having

provided incorrect addresses and ages, as evident from the

returned caveat envelopes and the appeal memo had clearly

attempted to evade due process. This conduct demonstrates

their malafides and undermines their credibility before this

Court and warrants dismissal of their appeal on grounds of

lack of bonafides.

20. It is further argued that the contention that this

Court must hold the judgment of a co-equal bench in the

case of Ningappa Avanna Astekar's case (supra), as per

incuriam is clearly violative of Section 7 of the Karnataka

High Court Act and the principles of precedents. Further, it is

contended that the decision of the learned Single Judge of

this Court in Miss. Lilly D' Souza's case (supra), stands

overruled in WA No.4607/2002. Further, in Babupoojari's

case (supra), the facts reveal that the case involves a

Christian family and is good law only on the facts it dealt

with. It is contended that a reading of the judgment of this

Court in LRRP No.2003/1990 would show that the essential

facts are admitted and the question which was to be

considered on remand was only whether a Form No.7

application would be maintainable in the light of the existing

Section 15(2) application submitted by the respondent.

21. In support of the contentions advanced, the

learned counsel relied on the following judgments:-

• Gurushanth Pattedar v. Mahaboob Shahi Kulburga Mills & Another, reported in 2005 SCC OnLine Kar 283;

• Koggu v. 9th Land Tribunal, reported in ILR 1992 KAR 2717;

• Rama v. State of Karnataka & Others, by Order dated 05.07.1993 passed in W.P. No. 13606/1987;

• Joshi v. State, reported in ILR 1994 KAR 530;

• Ningappa Avanna Astekar v. State of Karnataka & Others, by Order dated 01.06.1993 passed in W.P. No. 24925/1990;

• Shivaji and others v. Assistant Commissioner & Others, by Order dated 01.06.1993 passed in W.P. No. 12716/1985;

• Narasing Gopalrao Desai v. The Land Tribunal, Khanapur & Others, reported in 1983 SCC OnLine Kar 181;

• Veerappa Pillai v. Raman & Raman Ltd. & Others, reported in AIR 1952 SC 192;

-

• DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana & Others, reported in (2003) 5 SCC 622; and

• D. Sasi Kumar v. Soundararajan, reported in (2019) 9 SCC 282.

22. A question with regard to maintainability of the

appeal was raised as a preliminary issue. The learned senior

counsel for the appellants and the learned counsel for the

respondent had addressed arguments on the issue. Several

decisions were also relied on. We notice that though the

learned Single Judge states that the jurisdiction exercised is

under Article 227 of the Constitution of India, the challenge

in the writ petition being against an administrative/statutory

order, the power which was exercised was clearly under

Article 226 of the Constitution of India. It is also pertinent

to note that the prayer made in the writ petition was to

quash the orders passed by the Tahasildar and the Assistant

Commissioner. In the light of the specific provision of the

Karnataka High Court Act and the judgment of the larger

bench of this Court in Tammanna and Others v. Miss.

Renuka and others reported in ILR 2009 KAR 1207, we

are of the clear view that an appeal would be maintainable

from the judgment of the learned Single Judge under

Section 4 of the Karnataka High Court Act.

23. On the merits of the matter, we have given our

anxious consideration to the pleadings and the contentions

of the parties as well as the precedents relied on by either

side, the primary question which arises for our consideration

in this appeal is:-

Whether the findings of the learned Single Judge that the respondent herein has succeeded in showing that he is entitled to restoration of the land in question from the appellants who are admittedly tenants of the land requires interference.

24. The provisions of the Karnataka Land Reforms

Act, 1961, which require a consideration are as follows:-

Section 2(31-A) reads as follows:-

"Section 2 [(31A) "soldier" means a person in the service of the Armed Forces of the Union and [for purposes of resumption of land and transfer of the resumed land] includes in the case of a soldier who has died [while in service as such soldier], the father, the mother, the spouse, the child and the grand child who

-

were dependent upon such soldier at the time of his death:

Provided that if a question arises whether any person is a soldier or whether any soldier has died [while in service as such soldier], such question shall be decided by the State Government, and its decision shall be final;]"

Section 5(2) reads as follows:-

Section 5. Prohibition of leases, etc.--(1) xxxxx

[(2) Nothing in sub-section (1) shall apply to,--

(a) a tenancy created or continued by a soldier or seaman if such tenancy is created or continued while he is serving as a soldier or a seaman or within three months before he became a soldier or a seaman.

(b) to any land leased after the commencement of the Karnataka Land Reforms (Amendment) Act, 1995 in the districts of Uttara Kannada and Dakshina Kannada by land owners or persons registered as occupants under the provisions of this Act for the purpose of utilising the land for acquaculture for a period not exceeding twenty years, at such lease rent as may be determined by mutual agreement between the parties and such agreement shall be registered and a copy thereof shall be sent to the Deputy Commissioner within fifteen days from the date of such registration.]

Section 15 reads as follows:-

"[15. Resumption of land by soldier or seaman.--(1) A soldier or a seaman who has created or continued a lease in accordance with the provisions of section 5 shall, subject to the provisions of this Act, be entitled to resume land to the extent of the ceiling area whether his tenant is a protected tenant or not.

-

(2) The soldier or the seaman shall, if he bona fide requires the land to cultivate personally, issue a notice to the tenant requiring him to deliver possession of the land within the period specified in the notice, which shall not be less than the prescribed period.

(3) The notice referred to in sub-section (2) shall be given,--

(i) in the case of a soldier in service in the Armed Forces of the Union, [at any time not later than one year] from the date on which he is released from the Armed Forces or is sent to the reserve;

(ii) in the case of the father, mother, spouse, child or grand-child of a soldier, within one year from the date of the death of such soldier; and

(iii) in the case of a seaman, within one year from the date on which he ceases to be a seaman.

(4) If the tenant fails to deliver possession of the land within the period specified in the notice, the soldier or the seaman may make an application to the Tahsildar within whose jurisdiction the greater part of the land is situated, furnishing the prescribed particulars for eviction of the tenant and delivery of possession of the land.

(5) On receipt of such application, the Tahsildar shall issue a notice to the tenant calling upon him to deliver possession of the land to the soldier or the seaman within such time as may be specified in the notice, [which shall not be less than the prescribed period] and if the tenant fails to comply, the Tahsildar may summarily evict the tenant and deliver possession of the land to the soldier or the seaman.

(6) Where the Tahsildar, on application by the tenant or otherwise and after such enquiry as may be prescribed, is satisfied that a notice as required by sub- section (2) is not issued, he shall, by notification, declare that with effect from such date as may be specified in the notification the land leased shall stand transferred to and vest in the State Government free from all encumbrances. The Tahsildar may take possession of the land in the prescribed manner and the tenant shall be entitled to be registered as an occupant thereof. The provisions of section 45 shall mutatis mutandis apply in this behalf.]"

Section 19 reads as follows:-

"19. Restriction on transfer of resumed land.--

[(1)] Notwithstanding anything contained in any other law or in section 80, no land resumed from a tenant [shall within fifteen years] from such resumption be transferred by sale, [gift, exchange or otherwise]:

Provided that such land may be sold to the tenant who on resumption had been evicted from that land, at a value to be determined by the [Tahsildar]:

[Provided further that such land may be sold by the father, the mother, the spouse, the child or the grand child of a soldier who has died [while in service] and who was dependent upon such soldier at the time of his death.]

[(2) Notwithstanding anything contained in sub- section (1), it shall be lawful for a landowner to take a loan and mortgage or create a charge on his interest in

-

the land in favour of the State Government, [a financial institution, a co-operative land development bank, a co- operative society], a company as defined in [section 3 of the Companies Act, 1956] in which not less than fifty- one per cent of the paid up share capital is held by the State Government or a Corporation owned or controlled by the Central Government or the State Government or both, for development of land or improvement of agricultural practices; and without prejudice to any other remedy provided by any law, in the event of his making default in payment of such loan in accordance with the terms and conditions on which such loan was granted, it shall be lawful to cause his interests in the land to be attached and sold and the proceeds to be utilised in payment of such loan.]"

Section 44 reads as follows:-

"[44. Vesting of lands 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.

(2) Notwithstanding anything in any decree or order of or certificate issued by any Court or authority directing or specifying the lands which may be resumed or in any contract, grant or other instrument or in any other law for the time being in force, with effect on and from the date of vesting and save as otherwise expressly

provided in this Act, the following consequences shall ensue, namely,--

(a) all rights, title and interest vesting in the owners of such lands and other persons interested in such lands shall cease and be vested absolutely in the State Government free from all encumbrances;

(b) all [*****] amounts in respect of such lands which become due on or after the date of vesting shall be payable to the State Government and not to the land-owner, landlord or any other person and any payment made in contravention of this clause not be valid;

(c) all arrears of land revenue, cesses, water rate or other dues remaining lawfully due on the date of vesting in respect of such lands shall after such date continue to be recoverable from the land-owner, landlord or other person by whom they were payable and may, without prejudice to any other mode of recovery, be realised by the deduction of the amount of such arrears from the amount payable to any person under this Chapter;

(d) no such lands shall be liable to attachment in execution of any decree or other process of any Court and any attachment existing on the date of vesting and any order for attachment passed before such date in respect of such lands shall cease to be in force;

(e) the State Government may, after removing any obstruction which may be offered, forthwith take possession of such lands:

Provided that the State Government shall not dispossess any person of any land in respect of which it considers, after such enquiry as may be prescribed, that he is prima face entitled to be registered as an occupant under this Chapter;

-

(f) the land-owners, landlord and every person interested in the land whose rights have vested in the State Government under clause (a), shall be entitled only to receive the amount from the State Government as provided in this Chapter;

(g) permanent tenants, protected tenants and other tenants holding such lands shall, as against the State Government, be entitled only to such rights or privileges and shall be subject to such conditions as are provided by or under this Act; and any other rights and privileges which may have accrued to them in such lands before the date of vesting against the landlord or other person shall cease and determine and shall not be enforceable against the State Government."

Section 45 reads as follows:-

"45. Tenants to be registered as occupants of land on certain conditions.--(1) Subject to the provisions of the succeeding sections 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.

(2) If a tenant or other person referred to in sub-

section (1),--

(i) holds land partly as owner and partly as tenant but the area of the land held by him as owner is equal to or exceeds a ceiling area he shall not been entitled to be registered as an occupant of the land held by him as a tenant before the date of vesting;

(ii) does not hold and cultivate personally any land as an owner, but holds land as tenant, which he cultivates personally in excess of a ceiling area, he shall be entitled to be registered as an occupant to the extent of a ceiling area;

(iii) holds and cultivates personally as an owner of any land the area of which is less than a ceiling area, he shall be entitled to be registered as an occupant to the extent of such area as will be sufficient to make up his holding to the extent of a ceiling area.

(3) The land held by a [person] before the date of vesting and in respect of which he is not entitled to be registered as an occupant under this section shall be disposed of in the manner provided in section 77 [after evicting such person]."

25. The main contentions raised by the appellant are

as follows:

(i) The Property was never leased in writing to the predecessor of the appellant by the fourth respondent or any member of his family. The tenancy was created in the year 1923 when the respondents family did not even own the land.

(ii) The property was joint family property and respondent No.4 became the owner of the property only on Partition Deed being executed on 10.10.1974.

(iii) That there has to be a 'creation' of tenancy, in writing

-

after the fourth respondent became the owner of the land, failing which, the provision would not be applicable.

(iv) There was a clear error in the order of the Assistant Commissioner inasmuch as this Court in Annexure-A judgment, had remanded the matter for a decision on merits. The said exercise was not undertaken, as directed.

26. We notice that the learned Single Judge has

considered the very specific contentions advanced and has

rendered findings on all the questions raised. We notice that

this Court, in Annexure A judgment in LRRP No.2003/1990

has specifically recorded that Gopalkrishna Bhat was a

soldier and that he was the co-owner of the subject land

along with Bheema Bhat. It was also found that the

Revision Petitioners claimed the land jointly owned by the

Bheema Bhat and Gopalkrishna Bhat and the Land Tribunal

had granted the occupancy rights to the tenants in respect

of the lands that were claimed in Form No.7 application filed

by them. It is thereafter that the judgment records as

follows:-

-

"(iii) That in their defence, the respondents No.1 and 2 had claimed before the Land Tribunal as well as before the Appellate Authority that there was a partition between the brothers and as per the share list of the year 1972, the subject land had fallen to the share of the respondent No.2-

Gopalkrishna Bhat and that he being a soldier, the subject land did not vest in the State under Section 44 of the Karnataka Land Reforms Act, hereinafter referred to as 'Act' in view of the provision under Section 5(2) of the Act."

27. Thereafter, in the light of the admitted facts, it

was held as follows:

"4. In the said circumstances it appears to me that both the orders passed by the authorities below can not sustain, for, in my considered view what the Land Tribunal normally would have done was to keep the claims of the original applicants in abeyance till the jurisdictional Tahsildar decided as to the point of vesting the subject lands as contemplated under Section 15 of the Act."

28. By Annexure-B, the orders granting occupancy to

the appellants herein also stood quashed for a proper

consideration of the issue. Annexure-C, order of the

Tahasildar considers the specific aspects and holds that the

respondent is a "soldier", and has complied with all

procedural requirements. It is further held that in view of

the claim for restoration raised by the soldier, there can be

no vesting under Section 44 of the Act, until the said claim is

decided. The learned Single Judge has also considered these

aspects specifically and has found the contention well

founded and supported by the Bench decision in Ningappa

Avanna Astekar's case, (supra). The contention that the