(BY SRI. V.S. KALASURMATH, AGA FOR R1;
SMT. DEEPA P. DODDATTI, ADVOCATE FOR R2(A-B);
SRI. S.H. YADAWAD, ADVOCATE FOR R3-7 & 12 (ABSENT);
R4 REPRESENTED BY GPA HOLDER R3;
NOTICE TO R8 & R20 IS SERVED;
SRI. MRUTYUNJAY TATA BANGI, ADVOCATE FOR R9-11, R13-16;
R17-R19 REPRESENTED BY GPA HOLDER;
R21 IS ABSENT)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUING A WRIT OF
CERTIORARI AND QUASH THE ORDER DATED 27.10.2022 ISSUED BY
THE RESPONDENT NO.1 VIDE ANNEXURE-"A" NO.
L.R.M/BELAGAVI/S.R-172 &149 AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 05.02.2025, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
1. The Petitioners are before this Court seeking for the
following reliefs:
NC: 2025:KHC-D:5091
i. Issuing a writ of certiorari and quash the order
dated 27.10.2022 issued by the Respondent
No.1 vide Annexure-"A" No.
L.R.M/BELAGAVI/S.R-172 &149
ii. Pass any other order(s) as this Hon'ble Court
may deem fit and proper in the facts and
circumstances of the case, in the interest of
justice.
2. The facts in brief are;
2.1. The petitioners claim that the land bearing
Survey No.79/2 measuring 05 acres 04
acres 20 guntas, both situated within the
village limits of Benakanhalli Taluka, Belagavi
District, were sold by Mr. Madhukar Omanna
Muchandi through a registered sale deed dated
01.10.1965 to Madhan Bindurao Potdar -
Respondent No.2 herein. Accordingly, his
name was entered in the record of rights.
2.2. The petitioners entered into an agreement of
sale dated 24.10.1994 with Respondent No.4,
who was representing Respondent No.2 as a
NC: 2025:KHC-D:5091
power of attorney holder. After receipt of the
entire sale consideration of Rs.4,08,000/- in
respect of Survey No.79/2 and Rs.5,24,000/-
in respect of Survey No.85/2, a sale deed
came to be executed on 31.12.2002 in favor of
the petitioners by Respondent No.2 through
his power of attorney, Respondent No.4.
2.3. Thereafter, the petitioners had been put in
actual physical possession of the properties,
and their names came to be mutated in the
records of rights in respect of the aforesaid
properties vide M.E.No.3600 and M.E.No.3601,
respectively. The petitioners further claim that
they have made payments of property taxes,
electricity connections etc.
2.4. Respondent No.2 filed RTS Appeal No.52/2006
before the Assistant Commissioner, Belagavi,
challenging the aforesaid mutation entries in
M.E.No.3600 and M.E.No.3601, wherein
NC: 2025:KHC-D:5091
Respondent No.2 contended that the power of
attorney executed by Respondent No.2 in
favor of Respondent No.4 had been cancelled,
and a paper publication had been issued in the
newspaper Kannadamma, and as such, no sale
deed could be executed by Respondent No.4
on behalf of Respondent No.2, in favour of the
petitioners. The petitioners claim that, on
enquiry being made by petitioners with
Respondent No.4, Respondent No.4 has denied
any such cancellation.
2.5. The Assistant Commissioner, Belagavi, allowed
the appeal by an order dated 05.01.2007 and
cancelled the mutation entries.
2.6. The petitioners then preferred a Revision
Petition No.423/2006-07 challenging the order
in RTS Appeal No. 53/2006 and Revision
Petition No.424/2006-07, challenging the
order in RTS Appeal No.52/2006, before the
NC: 2025:KHC-D:5091
Deputy Commissioner, Belagavi. The Deputy
Commissioner, Belagavi, vide its order dated
13.07.2009, dismissed the revision petitions.
2.7. Challenging the same, the petitioners filed
Writ Petition Nos.65365/2009 and
65366/2009, which came to be disposed of
reserving liberty to the petitioners to approach
the revenue authorities.
2.8. The petitioners have issued a public notice on
31.12.2002, informing the general public that
the sale deed has been executed in favor of
the petitioners. However, Respondent No.2 on
13.07.2011, executed a sale deed in respect of
R.S.No.79/2 in favor of Respondent No.8, and
another sale deed in respect of R.S.No.85/2 in
favor of Respondent No.3.
2.9. The petitioners thereafter filed two suits, in
O.S.No.27/2012, for declaration and perpetual
NC: 2025:KHC-D:5091
injunction before the Principal Senior Civil
Judge, Belagavi.
2.10. Respondents No.5 to 7 had filed impleading
applications in the said suit, which came to be
dismissed. In the meanwhile, Writ Petition
Nos.101039 and 101040 of 2018 having been
filed, vide common orders dated 07.03.2019,
this Court directed Petitioners No.1 to 4 to be
impleaded as parties before the Land Tribunal,
as also permitted Respondents No.5 to 7 to be
impleaded as defendants in the original suit in
O.S.No.18/2012.
2.11. This Court had also directed the Land Tribunal
to adjudicate the long-pending occupancy
claim. It is only then that the petitioner claims
that they came to know about the litigation
between Respondents No.5 to 7 and
Respondent No.2, as regards the tenancy
rights, and that the grandfather of
- 10 -
NC: 2025:KHC-D:5091
Respondents No.5 to 7 had filed an application
on 15.10.1955, voluntarily surrendering the
aforesaid lands to the Village Accountant,
Benakanahalli, to Sri. Madhukar Omanna
Muchandi, by stating that such Sri. Madhukar
Omanna Muchandi was growing grass in the
said land and other land was open fallow land
and nothing was being grown on those lands.
2.12. On that basis, it is contended that the
Tahsildar, Belagavi, by its order dated
01.05.1956, deleted the name of the
grandfather of Respondents No.5 to 7 as a
tenant and inserted the name of Madhukar
Omanna Muchandi as the owner in possession
and occupation of the suit properties. The
said order was not challenged by the
grandfather of Respondents No.5 to 7, and it
continued to be reflected in the revenue
records.
- 11 -
NC: 2025:KHC-D:5091
2.13. The father of Respondent No.5 to 7 filed a
case bearing No. BELGAUM/SR:172+439,
before the Land Tribunal, Belagavi, in which
the aforesaid Madan Bindurao Podtar was
arrayed as a defendant. Subsequently, the
petitioners were also brought on record in the
year 2019.
2.14. The father of Respondents No.5 to 7 had also
filed a case bearing No. BELGAUM/SR:172
before the Land Tribunal, Belagavi. The Land
Tribunal passed an order in the said matter
allowing the application filed by the father of
Respondents No.5 to 7.
2.15. Being aggrieved by the same, Madan Bindurao
Podtar filed a writ petition in WP
No.15761/1994, which came to be allowed on
07.04.1997, quashing the order of the Land
Tribunal and remitting the matter for fresh
disposal in accordance with law.
- 12 -
NC: 2025:KHC-D:5091
2.16. The father of Respondents No.5 to 7, Firdosh
Darga, had filed a suit for declaration and
consequential relief of permanent injunction,
which came to be dismissed.
2.17. The respondents also filed an application in
Form No.7 in respect of the land in Survey
No.79/2. It is in furtherance thereof the
impugned order dated 27.10.2022 at
Annexure-A has been passed, allowing the
application in Form No.7 filed by the
respective applicant both in respect of Survey
No. 79/2 and 85/2. It is challenging the same,
the petitioners are before this Court.
3. Sri. Prashant F. Gowdar, learned counsel appearing
for the petitioners, would submit that;
3.1. The tenant had surrendered the tenancy in
terms of Section 5 of the Bombay Tenancy and
Agricultural Lands Act, 1948 ('the Act of 1948',
- 13 -
NC: 2025:KHC-D:5091
for short), by following the due procedure
thereunder.
3.2. Section 5 is reproduced hereunder for easy
reference:
5. (1) No tenancy of any land shall be for a
period of less than ten years.
(2) Notwithstanding any agreement, usage
or law to the contrary, no tenancy shall be
terminated before the expiry of a period of
ten years except on the ground mentioned
in section 14;
Provided that any tenancy may be
terminated by a tenant before the expiry of
a period of ten years by surrendering his
interest as a tenant in favour of the landlord.
3.3. His submission is that, a tenancy may be
terminated by a tenant before the expiry of
ten years by surrendering his interest as a
tenant in favor of the landlord.
3.4. In the present case, such tenancy having been
surrendered to the landlord, the question of
the tenant subsequently claiming occupancy
rights would not arise. He relies upon Section
- 14 -
NC: 2025:KHC-D:5091
29 of the said Act of 1948, which is
reproduced hereunder for easy reference:
29. (1) A tenant or an agricultural labourer or
artisan Procedure entitled to possession of
any land or dwelling house under any of the
provisions of this Act may apply in writing
for such possession to the Mamlatdar. The
application shall be made in such form as
may be prescribed.
(2) No landlord shall obtain possession of
any land or dwelling house held by a tenant
except under an order of the Mamlatdar. For
obtaining such order he shall make an
application in the prescribed form.
(3) On receipt of application under sub-
section (1) or (2) the Mamlatdar shall, after
holding an inquiry, pass such order thereon
as he deems fit.
(4) Any person taking possession of any land
or dwelling house except in accordance with
the provisions of sub-section (1) or (2), as
the case may be, shall be liable to forfeiture
of crops, if any, grown in the land in addition
to payment of costs as may be directed by
the Mamlatdar or by the Collector and also
to the penalty prescribed in section 81.
3.5. By referring to Section 29 of the Act of 1948,
he submits that the said provision would apply
when the landlord was to seek possession. For
voluntary surrender, it would be Section 5
which would be applicable and as such, no
- 15 -
NC: 2025:KHC-D:5091
order is required to be obtained by the
landlord in relation to voluntary surrender.
3.6. He refers to the amendment made to the said
Act and the amended Section 5 thereto, which
is reproduced hereunder for easy reference:
5. (1) No tenancy of any land shall be
for a period of less than ten years:
Provided that at the end of the said period
and thereafter at the end of each period of
ten years in succession, the tenancy shall,
subject to the provisions of sub-sections (2)
and (3), be deemed to be renew for a
further period of ten years on the same
terms and conditions notwithstanding any
agreement to the contrary
(2) The landlord may, by giving the tenant
one year's notice in writing before the end of
each of the periods referred to in sub-
section (1), terminate the tenancy, with
effect from the thirty-first day of March in
the last year of each of the said period, if he
bona fide requires the land for any of the
purposes specified in sub section (1) of
section 34, but subject to the provisions of
sub-sections (2) and (2A) of the said
section, as if such tenant was a protected
tenant.
(3) Notwithstanding anything contained in
sub-section (1)-
(a) every tenancy shall, subject to the
provisions of sections 24 and 25, be liable to
be terminated at any time on any of the
grounds mentioned in section 14; and
- 16 -
NC: 2025:KHC-D:5091
(b) a tenant may terminate the tenancy at
interest as a tenant in favour of the
landlord:
Provided that such surrender shall be in
writing and shall be verified before the
Mamlatdar in the prescribed manner.
3.7. By referring to the amendment carried out in
the year 1952, he submitted that a tenant, in
furtherance of the amendment, could
terminate the tenancy at any time by
surrendering his interest as a tenant in favour
of the landlord, provided that such surrender
shall be in writing and shall be verified by the
tenant before the Mamlatdar in the prescribed
manner.
3.8. In the present case, the surrender has
happened in writing, and the Mamlatdar had
signed the surrender and therefore, the
surrender having been completed in the year
1956, the question of claiming the existence of
tenancy on a subsequent date would not arise
and as such, this aspect ought to have been
- 17 -
NC: 2025:KHC-D:5091
taken into consideration by the Land Tribunal.
If it had been so taken into consideration, the
application filed by the tenant would naturally
ought to have been rejected.
3.9. He relies upon the decision of this court in the
case of Hire Masudi Inam (Jamia Masjid)
Vs. The Land Tribunal and Others,
Shiraguppa1, more particularly para no. 5
thereof, which is reproduced hereunder for
easy reference:
5. Rule 19 of the Rules requires that when
an application under Section 48A(1) is
received by the Tribunal, the Tahsildar shall
verify the particulars mentioned in the
application with reference to the Record of
Rights and other Revenue Records and shall
make a note of the result of the verification
on the application. Thereafter, the Tribunal
has to issue notice to the opposite party i.e.,
the land holder. In the instant case, no such
verification was done by the Tahsildar.
Verification of the particulars mentioned in
the application with reference to the Record
of Rights is necessary for the reason that
under Section 133 of the Karnataka Land
Revenue Act, the entries in the Record of
Rights are presumed to be correct. If the
Record of Rights do not show the name of
the person claiming to be the tenant as the
1 ILR 1977 KAR 497
- 18 -
NC: 2025:KHC-D:5091
person cultivating the land immediately prior
to 1st of March 1974, which is the relevant
date, the presumption is that the land has
not vested in the State Government under
Section 44 of the Act. Until that presumption
is rebutted either by the State or by the
person claiming to be a tenant, the
presumption is that the land holder is
personally cultivating the land immediately
prior to 1st March 1974. A presumption
arising under Section 133 of the Karnataka
Land Revenue Act can be rebutted only after
hearing both sides and no ex-parte order
could be made against the land holder when
there is a presumption of law arising under
the said section in his favour. In the instant
case, it is conceded by Sri.Arbatti, learned
counsel for the second respondent that the
name of the second respondent does not
find a place in the Record of Rights for the
years immediately prior to 1st March 1974.
The Tribunal without verifying this fact from
the Record of Rights has acted wholly
arbitrarily in issuing an order of temporary
injunction against the appellant. The injury
suffered by the appellant as a result of the
arbitrary and illegal exercise of the power by
the Tribunal, is of a substantial nature and
has also resulted in substantial failure of
justice.
3.10. By referring to Masudi Inam's case, he
submits that, when an application is received
in terms of Sub-section (1) of Section 48A of
the Karnataka Land Reforms Act, 1961, in
terms of Rule 19 of the Karnataka Land
Reforms Rules, 1974, the Tahsildar is required
- 19 -
NC: 2025:KHC-D:5091
to verify the particulars mentioned in the
application with reference to the record of
rights and other revenue records and shall
thereafter make a note on the result of the
verification.
3.11. In the present case, no such verification report
has been submitted. If the same had been
verified and considered, the surrender of the
tenancy by the tenant to the landlord would
have come to light, and the present impugned
order would not have been passed.
3.12. He refers to the decision in the case of
Hanamantha Gavadu Patil Vs. Land
Tribunal, Khanapur and Others2, more
particularly Para no. 8 thereof, which is
extracted hereunder for easy reference:
8. In view of these statements made by
these persons before the Land Tribunal it is
difficult to accept the contention of the
(1997) 2 Kant LJ 464
- 20 -
NC: 2025:KHC-D:5091
learned Counsel for the petitioner now that
the petitioner was also a tenant along with
his father of this land. It is very clear that
the case of the petitioner that he was also a
tenant of the land is developed by the
petitioner as an after thought. The
proceedings before the Land Tribunal
discloses that the father has surrendered the
land. There is no material produced by the
petitioner to lead to the inference that there
was any fraud practised on his father for
surrendering the land at that time. This
theory of fraud also appears to be very
improvable in view of the fact that not only
the petitioner's father but the petitioner
himself was examined before the Land
Tribunal and in his statement before the
Tribunal he has not stated that any fraud
was practised by respondent 3 on his father
for surrendering the land. Therefore, it will
have to be held that the petitioner's father
who was the only tenant of the land
surrendered his tenancy rights and that
surrender was accepted by the Tribunal. The
other contention that is raised by the
Counsel for the petitioner is that no
possession has been delivered by the father
of the petitioner in pursuance of the
surrender and therefore the petitioner
continues to be the tenant of the land. The
learned Munsiff who was the Presiding
Officer over the Tribunal has passed a
detailed judgment, the copy of which is
produced in this case, therein he has
recorded as follows:
"Therefore, he wants to surrender the suit
land to the opponent being aware of his
tenancy rights in the suit land. He has
affixed his thumb mark to the application.
He has also given possession of the suit land
to the opponent. His witness Hanamantha
Gavadu Patil deposed that he has no interest
in the suit land. His father is the tenant of
the suit land".
- 21 -
NC: 2025:KHC-D:5091
3.13. By referring to Hanamantha Gavadu Patil's
case he submits that, when the documents
reflect that it is the father who was the tenant
and who had surrendered the tenancy, the
question of the son contending that he was
also a tenant along with the father would not
arise unless there is material produced to
indicate that the son was also a tenant.
3.14. The father having surrendered his tenancy
rights before the Mamlatdar, the Tribunal
ought to have accepted the same instead of
believing the story now sought to be made out
by the respondents that they were also
tenants along with their father.
3.15. He relies upon the decision of the Hon'ble
Apex Court in the case of Arun Kumar Vs.
State of Karnataka and Another3, more
particularly para nos. 3, 12 and 13 thereof,
3 (2008) 12 SCC 137
- 22 -
NC: 2025:KHC-D:5091
which are extracted hereunder for easy
reference:
3. At the relevant point of time the Bombay
Tenancy and Agricultural Lands Act, 1948 (in
short "the Bombay Tenancy Act") was in
operation in the State of Karnataka. Section
5(3)(b) of the said Act reads as follows:
"5. (3) Notwithstanding anything contained
in sub-section (1)--
(a)***
(b) a tenant may terminate the tenancy at
any time by surrendering his interest as a
tenant in favour of the landlord:
Provided that such surrender shall be in
writing and shall be verified before the
Mamlatdar in the prescribed manner."
12. The effect of surrender of tenancy was
considered by this Court in Vallabbhai
Nathabhai v. BaiJivi and Ramchandra Keshav
Adke v. Govind Joti Chavare. In the latter
case it was, inter alia, held that the tenancy
of such surrender comes to an end and the
rights arising out of that relationship
terminate. A surrender by tenancy can be
only valid and binding on him if it was in
writing and was verified by Mamlatdar
whose duty is to ascertain whether
surrender was voluntary and was not under
any pressure or undue influence of the
landlord.
13. In the instant case the documentary
evidence clearly established the fact that the
surrender was voluntary and without
pressure or undue influence. As noted
above, the Tahsildar has endorsed his
findings on the document itself. It is
necessary to refer to Sections 7 and 41 of
the Act which provide for restoration of
- 23 -
NC: 2025:KHC-D:5091
possession under certain circumstances. The
procedure for recovery of such possession is
also prescribed. Undisputedly no such
application was, however, filed by
Respondent 2. Additionally, no action was
taken by Respondent 2 for grant of tenancy
rights from 1955 till 1974.
3.16. By referring to Arun Kumar's case, his
submission is that, once the tenancy was
surrendered, the tenancy came to an end, and
all rights arising out of such a relationship
were terminated. The documentary evidence
clearly indicates that the tenant had
surrendered the tenancy, and no claim
thereafter could be made because the entire
relationship came to an end.
3.17. He relies upon the decision of the Hon'ble
Apex Court in the case of Vallabbhai
Nathabhai Vs. Baijivi and Others4 , more
particularly para nos. 3, 4, and 7 thereof
(1969) 1 SCC 392 | 1969 INSC 6
- 24 -
NC: 2025:KHC-D:5091
which are extracted hereunder for easy
reference:
3. Section 15 reads as under:
"A tenant may terminate the tenancy in
respect of any land at any time by
surrendering his interest therein in favour of
the landlord:
Provided that such surrender shall be in
writing and verified before the Mamlatdar in
the prescribed manner."
The relevant part of Section 29(1), reads as
under:
"A tenant ... entitled to possession of any
land ... under any of the provisions of this
Act may apply in writing for such possession
to the Mamlatdar."
Sub-section 2 of Section 29 provides that no
landlord shall obtain possession of any land
held by a tenant except under an order of
the Mamlatdar. Section 84 reads as under:
"Any person unauthorisedly occupying or
wrongfully in possession of any land--
(a) the transfer or acquisition of which either
by the act of parties or by the operation
of law is invalid under the provisions of
this Act,
(b) the management of which has been
assumed under the said provisions, or
(c) to the use and occupation of which he is
not entitled under the said provisions
and the said provisions do not provide
for the eviction of such persons,
may be summarily evicted by the Collector."
Section 15(1) was inserted in the Act by
Section 11 of Bombay Act, 13 of 1956. Even
before 1956 there was in the Act Section
- 25 -
NC: 2025:KHC-D:5091
5(3) the proviso of which required a
surrender of tenancy by a tenant to be in
writing and verified by the Mamlatdar. There
is, however, no dispute before us that the
proviso to Section 15(1) applies to the
present case and that the surrender under
which Respondent 1 obtained possession of
the land in question was neither in writing
nor was verified in an inquiry before the
Mamlatdar.
4. Under Section 15(1) a tenant, as defined
by Section 2(18) of the Act, can terminate
the tenancy in respect of the land held by
him as a tenant by surrendering his interest
in favour of his landlord and as provided by
sub-section 2 on such surrender of the
tenancy the landlord becomes entitled to
retain the land so surrendered by the tenant
in the same manner as when the tenancy is
terminated under Sections 31 and 31-A of
the Act. The tenancy on such surrender
comes to an end and thereupon the
relationship between them of a landlord and
a tenant and the rights arising out of that
relationship terminate. The legislature,
however, was aware of the possibility of
landlords taking advantage over the tenants
and therefore to safeguard the tenants
against such a possibility it laid down
through the proviso that a surrender by a
tenant could only be valid and binding on
him if it was in writing and was verified by
the Mamlatdar. Before the Mamlatdar would
verify such surrender it would be his duty to
ascertain whether the surrender was
voluntary and was not under pressure or
undue influence of the landlord. But once the
surrender satisfies these two conditions it
has the same effect as the termination of
tenancy; the tenancy comes to an end and
the landlord becomes entitled to retain the
land of which possession is delivered to him
by the tenant surrendering his interest as a
tenant therein. In cases, however, where the
- 26 -
NC: 2025:KHC-D:5091
surrender has not satisfied the two
conditions, even if it is voluntary, it is no
surrender and therefore there is no
termination of relationship of a landlord and
tenant. Consequently, even if the tenant has
voluntarily surrendered possession and the
landlord has taken it over, since the tenancy
still continues, the tenant obviously is
entitled to retain possession and therefore to
its restoration. Though, therefore, Section 15
does not in so many words provide that in
such a case the tenant is entitled to
restoration of possession, there being no
valid surrender where the two conditions are
not satisfied, the tenancy continues and the
tenant can claim possession from the
landlord as the tenant of the land in
question, such claim being based on his right
as such tenant to be in possession of such
land and the landlord's disability to
terminate the tenancy under the provisions
of the Act. It is true that Section 37
expressly provides for restoration of
possession to the tenant in the eventuality
provided therein; while Section 15 does not
so provide. But the right to restoration had
to be provided for in Section 37 as there
would be termination of tenancy which
becomes revived and on revival thereof the
tenant becomes entitled to restoration of
possession. In a case under Section 15,
however, if the surrender is not valid it is no
surrender at all and there is no question of
termination of tenancy. The tenant continues
to be entitled to possession and therefore
there is no question of the section having to
provide for restoration of possession. There
is, therefore, no force in the contention that
in the case of an invalid surrender the tenant
is not entitled to possession under the
provisions of the Act. He is in fact entitled to
claim back possession under Section 15 itself
for under sub-section 2 the landlord
becomes entitled to retain the land only if
the surrender is in accordance with the
provisions of Section 15.
- 27 -
NC: 2025:KHC-D:5091
7. The question then is whether a tenant
who has a remedy under Section 29(1) can
still apply to the Collector under Section 84,
in other words, whether the legislature has
provided alternative remedies under both
the sections to such a tenant? The words
"any person unauthorisedly occupying or
wrongfully in possession of any land" in
Section 84, no doubt, are words of wide
import and would include a landlord who is
in unauthorised occupation or is wrongfully
in possession. A landlord who under an
invalid surrender is in possession of the land
is, no doubt, a person in unauthorised
occupation or is wrongfully in possession.
But then Section 84 in express terms limits
its application to three types of cases only,
namely, of a person unauthorisedly
occupying or wrongfully in possession of the
land (a) the transfer or acquisition of which,
etc. is invalid under the Act, or (b) the
management of which has been assumed
under the Act, or (c) to the use and
occupation of which he is not entitled under
the provisions of the Act and the said
provisions do not provide for the eviction of
such person.
3.18. By relying on Baijivi's case, he submits that
once there is a surrender of tenancy, the land
lord becomes entitled to retain the land so
surrendered in the same manner as the
tenancy would be terminated. On such
surrender, tenancy comes to an end, and the
- 28 -
NC: 2025:KHC-D:5091
relationship between the landlord and tenant
would also stand terminated.
3.19. He relies upon the decision of the Hon'ble
Bombay High Court in the case of Vijay
Prahlad Umale and Others Vs. Laxmikant
Ranganath Wadodkar and Others5, more
particularly para no. 13 thereof, which is
extracted hereunder for easy reference:
13. The term surrender as per Advanced
Law Lexicon 3rd Edition 2005 is as under:
"Surrender of tenancy. The termination of a
lease, which occurs when a tenant gives up
his interest to his landlord. Surrender can be
express or implied. Express surrender is
usually in the form of a deed. When the
lease is for less than three years, no deed is
needed provided that the tenant signs a
written agreement to surrender. Implied
surrender occurs when the actions of both
parties show that they consider the lease to
be at an end; for example, then the tenant
gives up possession, and the landlord
reoccupies the property. (Oxford Law
Dictionary, 5th Edn., 2003)
It would be travesty of justice if the real
meaning to the word "surrender" is not
given. When Dattu Ramu during his life time
never disputed the surrender deed,
accepting the story of the legal
5 2009(1) Mh.L.J.163
- 29 -
NC: 2025:KHC-D:5091
representatives about the alleged void
character of the surrender would be nothing
but making section 20 of the Act nugatory.
3.20. By relying on the above decision, he submits
that the father having surrendered the
tenancy and not having raised a dispute in
relation thereto, the legal representatives
cannot contend otherwise, which would
amount to a travesty of justice.
3.21. He relies upon the decision of the Hon'ble
Apex Court in the case of Rangnath Vishnu
Mulluck and Another Vs. Vithoba Rama
Rahane and Others6, more particularly para
no. 2 thereof, which is reproduced hereunder
for easy reference:
2. The respondent Vithoba was the tenant of
nine pieces of lands. In respect of five lands,
proceedings were initiated under Section 32-
G of the Bombay Tenancy and Agricultural
Lands Act, 1948 in the year 1962. On the
basis of the statement alleged to have been
made by the tenant on 5-8-1962 expressing
his unwillingness to purchase those lands,
an order was passed declaring the statutory
6 (1999) 1 SCC 69
- 30 -
NC: 2025:KHC-D:5091
sale ineffective. The landlord obtained
possession of those five lands on the basis of
the said order. So far as the other four lands
are concerned, there was no order in favour
of the landlord and yet he took over
possession of those lands also. The tenant,
therefore, filed an application under Section
84 of the Act for summary eviction of the
landlord from those lands. The Agricultural
Lands Tribunal dismissed the same on the
ground that the proper remedy for the
tenant was to make an application under
Section 29 of the Act and not under Section
84. The appeal against that order was
dismissed. The revision application made to
the Revenue Tribunal was also dismissed.
The High Court allowed the writ petition on
the ground that the tenant had not
surrendered his tenancy rights in respect of
those lands and the landlord had not
obtained possession thereof in a lawful
manner. Since the landlord was in
unauthorised possession of those lands as
he had no right to retain the same, the
application made by the tenant under
Section 84 was held proper and
maintainable.
3.22. By relying on Vithoba Ramarahane's case,
he submits that, if a tenant were to contend
that possession of the land was taken
improperly, then the remedy of a tenant was
to file proceedings under Section 29 of the Act
or to seek possession under Section 84 of the
Act by summary eviction of the landlord.
- 31 -
NC: 2025:KHC-D:5091
Neither having been done, an application
under Form 7 is not maintainable.
3.23. Sections 29 and 84 of the Bombay Tenancy
and Agricultural Lands Act, 1948, is
reproduced hereunder for easy reference:
29. (1) A tenant or an agricultural labourer
or artisan Procedure entitled to possession
of any land or dwelling house under any of
the provisions of this Act may apply in
writing for such possession to the
Mamlatdar. The application shall be made in
such form as may be prescribed.
(2) No landlord shall obtain possession of
any land or dwelling house held by a tenant
except under an order of the Mamlatdar. For
obtaining such order he shall make an
application in the prescribed form.
(3) On receipt of application under sub-
section (1) or (2) the Mamlatdar shall, after
holding an inquiry, pass such order thereon
as he deems fit.
(4) Any person taking possession of any land
or dwelling house except in accordance with
the provisions of sub-section (1) or (2), as
the case may be, shall be liable to forfeiture
of crops, if any, grown in the land in addition
to payment of costs as may be directed by
the Mamlatdar or by the Collector and also
to the penalty prescribed in section 81.
84. Any person unauthorisedly occupying or
wrongfully in possession of any land
(a) the transfer (or acquisition)4 of which
either by the act of parties or by the
operation of law is invalid under the
provisions of this act,
- 32 -
NC: 2025:KHC-D:5091
(b) the management of which has been
assumed under the said provisions, or
(c) to the use and occupation of which he is
not entitled under the said provisions and
the sad provisions do not provide for the
eviction of such persons,
May be summarily evicted by the Collector,
84A (1) A transfer of any land in
contravention of section 63 or 64 as is stood
before the commencement of the Amending
Act, 1955, made after the 28th day of
December 1948 (when the Bombay Tenancy
and Agricultural Land Act 1948, came into
force) and before the 15th day of June 1955
shall not be declared to be invalid merely on
the ground that such transfer was made in
contravention of the said sections if the
transferee pay to the state Government a
penalty equal to (one percent) of the
consideration of Rs.100, whichever is less:
Provided that, if such transfer is made by
the landlord, in favour of the tenant is actual
possession, the penalty leviable in respect
thereof shall be one rypee:
Provided further that if any such transfer is
made by the landlord in favour of any
person other than tenant in actual
possession, and such transfr is made either
after the unlawful eviction of such tenant, or
results in the eviction of the tenant in actual
possession, then such transfer shall not be
deemed to be validated (unless such tenant
has failed to apply for the possession of the
land under sub-section (1) of section 29
within two years from the date of his
eviction from the land.]
(2) On payment of such penalty, the
Mamlatdar shall issue a certificate to the
transferee that such transfer is not invalid.
(3) Where the transferee fails to pay the
penalty referred to in sub-section (7) within
such period as may be prescribed, the
transfer shall be debrection (7) Mamlatdar to
- 33 -
NC: 2025:KHC-D:5091
be invalid and thereupon the provisions of
sub-sections (3) to (5) of section 84C shall
apply.]
84B. (1) Where in respect of a transfer or
acquisition of any land made on or after the
15th day of June 1955 and before the
commencement of the Amending Act, 1955,
the Mamlatdar, suo motu or on the
application of any person interested in such
land, has reason to believe that such
transfer or acquisition
(a) was in contravention of section 63 or 64
as it stood before the commencement of the
Amending Act, 1955, or
(b) is inconsistent with any of the provisions
of this Act as amended by th Amending Act,
1955,
the Mamlatdar shall issue a notice in the
prescribed form to the transferor, the
transferee or the person acquiring such land,
as the case may be, to show cause as to
why the transfer or acquisition should not be
declared to be invalid and shall hold an
inquiry and decide whether the transfer of
acquisition is or is not invalid
[Provided that, where the transfer or
acquisition was in favour of the ten in
possession of the land and the area of the
land so transferred together with area of
other land, if any, cultivated personally by
the tenant did not exceed ceiling area, such
transfer or acquisition shall not be declared
to be invalid in tenant pays to the State
Government a penalty of one rupee within
such pe not exceeding three months as the
Mamlatdar may fix.]
(2) If after holding such inquiry the
Mamlatdar declare the transfer or acquisition
to be invalid, he shall direct that the land
shall be restored whom it was acquired, and
- 34 -
NC: 2025:KHC-D:5091
that the amount of consideration paid, if
any, shall be recovered as an arrear of land
revenue from the transferor and paid to the
transferee and until the amount is so fully
paid, the said amount shall be a charge on
the land.
(3) If the person to whom the land is
directed to be restored refuses to take
possession of the land, the Mamiatdar shall,
subject to the provisions of section 63A,
dispose of the land by sale in the prescribed
manner in the following order of priority:-
(i) the tenant in actual possession of the
land if he is not the transferee
(ii) the persons or bodies in the order given
in the priority list,
(4) The amount of price realised under sub-
section (3) shall subject to the payment of
any encumbrances subsisting on the land,
be paid to the transferor]
84C. (1) Where in respect of the transfer or
acquisition of any land made on or after the
commencement of the Amending Act, 1955,
the Mamlatdar suo motu or on the
application of any person interested in such
land has reason to believe that such transfer
or acquisition is or becomes invalid under
any of the provisions of this Act, the
Mamlatdar shall issue a notice and hold an
inquiry as provided for in section 84B and
decide whether the transfer or acquisition is
or is net invalid.
(2) If after holding such inquiry, the
Mamlatdar comes to a conclusion that e
transfer or acquisition of land is invalid, he
shall make an order declaring the transfer or
acquisition to be invalid:
- 35 -
NC: 2025:KHC-D:5091
[Provided that, where the transfer of land
was made by the landlord to the ant of the
land and the area of the land so transferred
together with the area of other land, if any,
cultivated personally by the tenant did not
exceed the ceiling the Mamlatdar shall not
declare such transfer to be invalid-
i) if the amount received by the landlord as
the price of the land is equal or less than the
reasonable price determined under section
63A and the trans e pays to the State
Government a penalty of one rupee within
such period exceeding three months as the
Mamlatdar may fix;
ii) if the amount received by the landlord as
the price of the land is in excess reasonable
price determined under section 63A and the
transferor as w transferee pays to the State
Government each a penalty equal to one-ten
reasonable price within such period as the
Mamlatdar may fix].
3) On the declaration made by the
Mamlatdar under sub-section (2)-
a) the land shall be deemed to vest in the
State Government, free from all
encumbrances lawfully subsisting thereon
on the date of such vesting, and shall be
disposed of in the manner provided in sub-
section (4) the encumbrance shall be paid
out of the occupancy price in the manner
provided in motion 32Q for the payment of
encumbrances out of the purchase price of
the sale of land but the right of the holder of
such encumbrances to proceed against the
person liable, for the enforcement of his
right in any other manner, shall not be
affected.
(b) the amount which was received by the
transferor as the price of the land shall be
deemed to have been forfeited to the state
Government and it shall be recoverable as
an arrear of land revenue and
- 36 -
NC: 2025:KHC-D:5091
(c) the Mamlatdar shall, in accordance with
the provisions determine the reasonable
price of the land.
(4) After determining the reasonable price,
the Mamlatdar shall grant the land new and
impartible tenure and on payment of
occupancy price equal to the reasonable
price determined under sub-section (3) in
the prescribed manner in the following order
of priority:-
(i) the tenant in actual possession of the
land;
(ii) the persons or bodies in the order given
in the priority list:
Provided hand and the transfer of hand was
made by the landlord to the tenant of the
land and the area of the land so transferred
together with the area of the land, if any,
cultivated personally by the tenant did not
exceed the ceiling area then]-
(1)[if the amount] received by the transferor
as the price of the land is equal to or less
than the reasonable price, the amount
forfeited under estion (3) shall be returned
to the transferor and the land restored to
the transferee on payment of a penalty of
rupee one in each case; and
(i) if the amount] received by the transferor
as the price of the la in excess of the
reasonable price, the Mamlatdar shall grant
the land transferee on new and impartible
tenure and on payment of occupancy equal
to one-tenth of the reasonable price and out
of the amount forfeited sub-section (3), the
transferor shall be paid back an amount
equal t tenths of the reasonable price.]
(5) The amount of the occupancy price
realised under sub-section (-subject to the
payment as aforesaid of any encumbrances
subsisting on t be credited to the State
Government:
- 37 -
NC: 2025:KHC-D:5091
Provided that where the acquisition of any
excess land was on account of gift or
bequest, the amount of the occupancy price
realised under sub-section (4) in respect of
such land shall, subject to the payment of
any encumbrances Hereon, be paid to the
donee or legatee in whose possession the
land account of such acquisition,
Explanation. For the purposes of this section
"new and impartil means the tenure of
occupancy which is non-transferable and
non-partible with out the previous sanction
of the Collector.]
(84CC. (7) Where the Collector and more or
on an application made to him in this behalf
has reason to believe that there has been a
breach of any of the condition subjection to
which permission to transfer land was
granted under section 63, he shall issue a
notice and hold an inquiry and after giving
an opportunity of being heard to the person
in whose favour such transfer was made,
decide whether there has been any breach
of condition of transfer to be invalid, unless
he holds that the that the breach was
occasioned for reasons beyond the control of
such person
(2) On making ordor under sub-section (1),
the lend shall stand forfeited and transferred
to, and shall vest without further assurance
in, the Government.
(3) The land vesting in the State
Government under sub-section (2) shall be
disposal of by the Collector to persons or
bodies in the order given in sub (2) of
section 32P or in such other manner as the
State Government may, by general or
special order, direct; and the encumbrances
lawfully subsisting on the date of the vesting
shall be paid out of the occupancy price in
the provided in section 320 for the payment
- 38 -
NC: 2025:KHC-D:5091
of encumbrances out of the purchase price
of the sale of land, but the right of the
holder of such encumbrances proceed
against the person liable, for enforcement of
his right in any other shall not be affected.]
84d. (1) Where any land has become liable
to be disposed of under section or 84C, and
the Tribunal] or as the case may be the
Mamlatdar considers to take time and that
with a view to preventing the remaining
uncultivated it is necessary to take such a
step, (the Tribunal, such Mamlatdar may
lease the land) for cultivation to any
agriculturist who has personal cultivation
land less than the ceiling area, subject to
the following conditions
1) the lease shall be for a period of one
year;
(d) the lessee shall pay rent at the rate fixed
by the Mamlatdar and applicable to the land
under section 9:
ⅱ) the lessee shall be liable to pay the land
revenue and the other cesses specified in
sub-section (1) of section 10A and payable
in respect of the land;
if the lessee fails to vacate the land on the
expiry of the term of lease he shall be liable
to be summarily evicted by the Mamlatdar.
2) The person holding land on lease under
sub-section (1) shall not be deemed tenant
within the meaning of this Act.
3) The amount of rent realised under sub-
section (1), shall be
a) paid to the owner of the land where the
lands is liable to be disposed of under
section 32P, and
b) forfeited to Government, where the land
is liable to be disposed of on 84C].
- 39 -
NC: 2025:KHC-D:5091
3.24. He relies upon the decision of this Court in the
case of Smt. Siddamma and Another Vs.
State of Karnataka and Others7, more
particularly para nos. 9 and 10 thereof, which
are extracted hereunder for easy reference:
9. It is clear form the aforesaid extracts of
the order of the Tribunal that the surrender
was accepted by the Tribunal as bona fide
and the landlord was permitted to enter
upon the land as per the provisions of S.
25 of the Act as it then stood. Section 25 of
the Act as it stood at the relevant point of
time reads as follows:-
"Surrender of land by tenant-
(1) No tenant shall surrender any land held
by him as such, and no landlord shall enter
upon the land surrendered by the tenant
without the previous permission in writing of
the Tribunal.
(2) Permission under sub-section (1) shall
be granted if, after making such inquiry as
may be prescribed, the Tribunal is satisfied
that the proposes surrender is bona fide and
the land surrendered does not exceed the
extent of land which the landlord could have
resumed from his tenant under Section 14;
in other cases the permission shall be
refused.
(3) Where permission is refused in any case
and the tenant gives a declaration in writing
relinquishing his rights in the land, such land
shall be deemed to be surplus land and the
provisions of Ss. 65 to 79 shall mutatis
mutandis apply to such land as if such land
were surplus land in excess of the ceiling
laid down in S. 63 or S. 64."
ILR 1979 KAR 579
- 40 -
NC: 2025:KHC-D:5091
From what has been stated earlier, it is clear
that in the instant case, the surrender had
taken place, in accordance with the provision
of Section 25 of the Act. Now, it is to be
seen as to what is the effect of such an
order of surrender on the tenancy right of
the 3rd respondent. The tenancy is a matter
or privity of parties. Subject to the law
governing the same, it can be put an end to
either by efflux of time agreed under the
contract or by termination of tenancy or by
surrender or the same. The Act in question
as it stood then, provided for termination of
tenancy only by way of surrender. The
surrender made in accordance with provision
of S. 25 of the Act did have the effect of
putting an end to the tenancy right of the
3rd respondent. Otherwise, the Section
would not have provided for permitting the
landlord to enter upon the land so
surrendered. There cannot be an order
permitting the landlord to enter upon the
land surrendered if the tenancy right of the
3rd respondent were to remain intact in
spite of acceptance of surrender by the
Tribunal. The Bombay Tenancy and
Agricultural Lands Act, 1948 and
the Hyderabad Tenancy and Agricultural
Lands Act, 1950 which came to be repealed
by the Act in question also contained a
provision for surrender. The relevant portion
of S. 5(3)(1)(b) of the aforesaid Bombay
Act reads as follows:
"(3) Notwithstanding anything contained in
sub-section (1)-
(a)......................
(b) a tenant may terminate the tenancy at
any time by surrendering his interest as a
tenant in favour of the landlord;
Provided that such surrender shall be in
writing and shall be verified before the
Mamlatdar in the prescribed manner."
Similarly, the relevant portion in S. 19 of the
aforesaid Hyderabad Act was as follows:--
"19. (1) Notwithstanding any
agreement or usage or any decree or
- 41 -
NC: 2025:KHC-D:5091
order of a Court of law, but subject to
the provisions of sub-section (3), no
tenancy of land shall be terminated
before the expiration of the period for
which the land is leased or deemed to
be leased otherwise than-
(a) by the tenant by surrender of his
rights to the land-holder at least a
month before the commencement of
the year.
Provided that such surrender is made
by the tenant in writing and is
admitted by him before and is made
in good faith to the satisfaction of the
Tahsildar."
From the aforesaid provisions, it is
clear that no provision was made to
permit the landlord to enter upon the
land surrendered while accepting the
surrender. The Act in question has
provided for the same. By providing
such a provision, the legislature has
made it clear that once there is a
surrender in accordance with S.
25 and the landlord is permitted to
enter upon the land surrendered, the
tenancy comes to an end. This view is
also further fortified by the fact
that S. 44 which provides for vesting
of lands does not include the lands
surrendered and still remaining in
possession of the tenant whereas, the
said section takes into its fold all such
lands held remaining in possession of
the tenants against whom a decree or
order for eviction or a certificate for
resumption is made or issued. Thus,
the order accepting the surrender and
permitting the landlord to enter upon
the land surrendered, had the effect
of putting the tenancy to an end and
thereby the relationship of the
landlord and tenant also came to an
end. If, in spite of the order under S.
25 of the Act, the tenant remained in
possession, his possession will not be
- 42 -
NC: 2025:KHC-D:5091
as a tenant. In the view I take, the
contention of Shri B. T. Parthasarathy
that unless there is an actual taking of
possession by the landlord the
tenancy continues even after the
surrender, must fail.
10. The Supreme Court, while considering
the provisions of Ss.4-B and 88-B of the
Bombay Tenancy and Agricultural Lands Act,
1948, in the case of Maneksha Ardeshir v.
Manekji Edulji :-
"13. The respondent-landlord gave a
notice to quit in 1955. At that time,
there was no contractual tenancy. The
appellant was a protected tenant.
Immediately the protection was taken
away by S. 88-B of the 1948 Act the
only question is whether the appellant
could claim to remain in occupation on
the plea of holding over. If a lessee
remains in possession after
determination of the term, he is under
the common law a tenant on
sufferance, the expression "holding
over" is used in the sense of retaining
possession. If a tenant after the
termination of the lease is in
possession without the consent of the
landlord, he is a tenant by sufferance.
It is only where a tenant will continue
in possession with the consent of the
landlord that he can be called a tenant
holding over or a tenant at will. In the
present case there is no doubt that
the appellant did not have any
consent and the respondent never
gave any consent to hold over. The
appellant remained in possession on
sufferance. Therefore, S.4-B of the
Act has no application because there
is no tenancy. Tenancy is a matter of
privity of parties. If there is no
consent, the appellant is a
trespasser." (Underlining is mine) In
the instant case also, it is not the case
- 43 -
NC: 2025:KHC-D:5091
of the 3rd respondent that after
passing of the order by the then Land
Tribunal on 22-12-1969, the landlord
agreed to continue him in possession
of the land in question as a tenant. On
the contrary, it is the case of the
petitioner that her brothers who were
brought on record as legal
representatives of her father in the
proceeding L.T. P. 604/67 before the
Land Tribunal, Mysore, took
possession of the land in question and
continued to be in possession and
cultivated the same personally. From
the aforesaid view taken by me, it is
clear that the relationship of the
landlord and the tenant came to an
end by reason of the order passed
under S. 25 of the Act. Therefore,
there was no relationship of the
landlord and tenant either on 1-3-
1974 or immediately prior to that date
between the heirs of the deceased
original landlord and the 3rd
respondent as the order passed
under S. 25 of the Act had the effect
of putting the tenancy to an end.
Consequently, the 1st point is
answered in favour of the petitioner.
3.25. By relying upon Siddamma's case, he
submits that, when a tenant has voluntarily
handed over possession with due consent, the
landlord can continue in possession in his own
right.
- 44 -
NC: 2025:KHC-D:5091
3.26. He relies on the decision of this Court in the
case of Puppegowda and Others Vs. The
Land Tribunal, Belur and Others8, more
particularly paras nos. 8, 10, and 11 thereof,
which is extracted hereunder for easy
reference:
8. The owner's case was rejected by the
Tribunal on the ground that the surrender
alleged by the land owner was not before
the competent authority in writing and such
surrender was not duly accepted. The
Tribunal has committed an error of law in
giving such a finding which is contrary to the
provisions of the proviso to sub-section (2)
of Section 5 of the Mysore Tenancy Act,
1952 (to be hereinafter called as 'Tenancy
Act').
10. Assuming the tenancy created in the
year 1950 continued after 29th January
1955 it could be terminated by consent as
per the proviso quoted above before the
expiry of a period of five years by
surrendering tenant's interest in favour of
the landlord. The case of the land owner is
that after the expiry of the period of lease,
he has been cultivating the land in question.
He has deposed to this effect in the course
of his statement. The tenant has merely
asserted that he has been cultivating even
after the expiry of the lease period in the
year 1955. But the stand taken by him is
neither supported, by oral nor by
documentary evidence. The Tribunal has
rightly disbelieved the evidence of the three
witnesses examined on behalf of the tenant
8 ILR 1977 KAR 237
- 45 -
NC: 2025:KHC-D:5091
on the ground of either interestedness or
that they were not neighbouring
landholders. Tribunal has also relied upon
the pahani copies from the year 1964
onwards. The tenant has not produced any
revenue records to show that from the year
1955 till 1974 that he was cultivating the
land as a tenant and, therefore, the Tribunal
was right in reaching the conclusion that the
tenant has not proved his case that he was
cultivating the land as tenant immediately
before the date of vesting. If the alleged
tenant was not cultivating the land, it was
the duty of the Tribunal to determine as to
who was cultivating the land. The Tribunal
has failed to do it. The Tribunal has ignored
the pahani copies produced by the owner
from the year 1964 to prove that he was
cultivating the land and his name was
entered in the pahani records. The Tribunal
has thus ignored the material evidence to
reach the conclusion that the owner was in
possession and cultivating the land prior to
the date of vesting. When the tenant has
failed to establish that he was cultivating the
land on lease immediately prior to 1st March
1974 and when the owner has established
that he was cultivating the land, the
conclusion reached by the Tribunal that the
land came to be vested in the Government is
contrary to law. The finding of the Tribunal
on the question of vesting is contrary to the
decision of the Division Bench of this Court
in Rayappa Basappa killed v. Land
Tribunal [1976 (1) K.L.J. 819.] . Wherein it
is laid down that where the alleged tenant
has not been in possession of the
agricultural land and he has not been
cultivating it personally immediately prior to
1st March 1974 such land does not vest in
the State Government under Section 44 of
the Act, and if it does not vest in the State
Government, the tenant is not entitled to be
registered as occupant.
11. No doubt the Tribunal has referred to
this judgment in the course of its order. But,
- 46 -
NC: 2025:KHC-D:5091
it appears to have misundestood the ratio of
the decision. Therefore, the decision of the
Tribunal that the land vested in the State
Government and that the consequences
under sub-section (2) of Section 44 of the
Act, should follow is vitiated.
3.27. By referring to Puppe Gowda's case, he
submits that the tenancy having been
surrendered in the year 1956 and the revenue
records indicating the name of the landlord, it
was for the tenant to produce any document
indicating that he was cultivating as a tenant
in the said land. The land categorically having
been indicated as fallow, and no agricultural
activities having been carried out in the said
land, the question of the tenant claiming
agricultural tenancy would not arise after such
surrender.
3.28. He also relies on the decision of this Court in
the case of Rayappa Basappa Kallad Vs.
Land Tribunal, Kundgol and Others9, more
9 ILR 1975 KAR 239
- 47 -
NC: 2025:KHC-D:5091
particularly para nos. 2 and 5 thereof, which
are extracted hereunder for easy reference:
2. The appellant was admittedly not in
possession of the land from 1957 in respect
of which he sought registration as occupant
under Section 45 of the Act. The question is
whether a person who claims that he had
the right of a tenant but not in possession of
the agricultural land on 1st March 1974,
which is the date on which all lands held by
or in the possession of tenants immediately
prior to the said date stand transferred to
and vest in the State Government.
5. In a case like this where the alleged
tenant has not been in possession of the
agricultural land and he has not been
cultivating it personally immediately prior to
the date of vesting viz., 1st March 1974,
such land does not vest in the State
Government under Section 44, and if it does
not vest in the State Government, the
tenant is not entitled to be registered as
occupant. Therefore, the Tribunal was right
in rejecting the appellant's application as the
land has not vested in the State Government
under Section 44(1).
3.29. By relying on Rayappa's case, he submits
that when the tenant claiming to have been a
tenant, has not been in possession of the
agricultural land and has not been cultivating
it personally, immediately prior to the date of
vesting i.e., 01.03.1974, the land does not
- 48 -
NC: 2025:KHC-D:5091
vest in the State Government under Section
44 and therefore, the tenant is entitled to be
registered as occupant.
3.30. He relies upon the decision of this Court in the
case of Puttegowda Vs. State of Karnataka
and Others10, more particularly para no. 7
thereof, which is extracted hereunder for easy
reference:
7. The learned single Judge relied
on Maneksha Ardeshir Irani v. Manekji Edulji
Mistry ((1974) 2 SCC 621 : A.I.R. 1974 S.C.
2123) and Section 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.
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 1st March 1974.
10 ILR 1980 KAR 160
- 49 -
NC: 2025:KHC-D:5091
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
under 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 1st March 1974 and therefore the
construction put on Section 44 by the
learned single Judge, does not appear to us
to be 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 the 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, lands support to our view that
mere permission to surrender without
delivery of possession 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 Transfer of Property Act,
tenancy of immoveable property is
determined, inter alia, by express surrender,
that is to say, in case the lessee yield up his
interest under the lease to the lessor, or, by
implied surrender.
As stated in Halsbury's Law 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 possession of the
land notwithstanding grant of permission to
- 50 -
NC: 2025:KHC-D:5091
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.
3.31. By relying on Puttegowda's case, his
submission is that, the lands which have been
surrendered would not be covered under
Section 44 of the Karnataka Land Reforms Act,
and as such, no proceedings could be initiated
thereunder.
3.32. He relies upon the decision of the Hon'ble
Apex Court in the case of Maneksha
Ardeshir Irani and Another Vs. Manekji
Edulji Mistry and Others11, more particularly
para nos. 13 and 14 thereof, which are
reproduced hereunder for easy reference:
13. The respondent-landlord gave a notice to
quit in 1955. At that time, there was no
contractual tenancy. The appellant was a
protected tenant. Immediately the protection
was taken away by Section 88B of the 1948
11 (1974) 2 SCC 621 | 1974 INSC 197
- 51 -
NC: 2025:KHC-D:5091
Act the only question is whether the
appellant could claim to remain in
occupation on the plea of holding over. If a
lessee remains in possession after
determination of the term, he is under the
common law a tenant on sufferance. The
expression "holding over" is used in the
sense of retaining possession. If a tenant
after the termination of the lease is in
possession without the consent of the
landlord, he is a tenant by sufferance. It is
only where a tenant will continue in
possession with the consent of the landlord
that he can be called a tenant holding over
or a tenant at will. In the present case, there
is no doubt that the appellant did not have
any consent and the respondent never gave
any consent to hold over. The appellant
remained in possession on sufferance.
Therefore Section 4-B of the Act has no
application because there is no tenancy.
Tenancy is a matter of privity of parties. If
there is no consent, the appellant is a
trespasser.
14. A contention was advanced on behalf of
the appellant that the appellant was entitled
to a notice when the Collector held an
inquiry under Section 88B(1) of the Act for
the purpose of granting a certificate to the
respondent. The Collector under Section
88B(1) of the Act grants a certificate after
holding an inquiry that the conditions in the
proviso to Section 88B(1) are satisfied by
any Trust. The Trust has to satisfy two
conditions. First, the Trust is registered
under the Bombay Public Trust Act, 1950.
Second, the entire income of the lands which
are the property of the Trust is appropriated
for the purposes of such Trust. The
certificate granted by the Collector shall be
conclusive evidence. The appellant raised
this contention in the High Court that the
appellant was entitled to a notice. The High
Court did not accept the contention. The
High Court held that the appellant at no
- 52 -
NC: 2025:KHC-D:5091
stage denied the fact that the lands are the
property of a Trust. The inquiry is between
the Collector and the Trust. The conclusive
evidence clause in the section means that it
is a rule of evidence which would not render
it necessary for it to prove again the
compliance with the requirements.
3.33. By relying on Maneksha Irani's case he
draws a distinction between holding over and
surrender of possession. Insofar as holding
over is concerned, he submits that, if a
tenancy has been terminated and the lessee
continues to be in possession, then there could
be holding over, but once a tenancy is
surrendered, the question of holding over
would not arise.
3.34. Lastly, he submits that deeds of consent have
been executed by the Padmannavar family
i.e., Respondents No.9 to 11, 13 to 20, in
favour of the Darga family, who are
Respondents No.3 to 7. Categorically
admitting that Madan Bindurao Potdar has
executed the registered sale deed in favour of
- 53 -
NC: 2025:KHC-D:5091
the members of the Darga family in respect of
R.S. No.85/2. The Padmannavar family have
confirmed the said sale deeds and have
indicated that they do not have any subsisting
right, title, or interest in the said property.
3.35. On this basis, he submits that Padamannavar's
family does not have any subsisting right, title
or interest they having confirmed the same in
favour of Darga family.
3.36. On that basis, he submits that these aspects
were not taken into consideration by the Land
Tribunal while passing the impugned order,
and as such, the impugned order is required to
be set aside.
4. Sri. Muthunjaya Tata Bangi, learned counsel for the
respondent submitted that;
4.1. The petitioner has no locus to challenge the
order of the Land Tribunal, since the petitioner
- 54 -
NC: 2025:KHC-D:5091
is a purchaser of the property during the
pendency of the proceedings before the Land
Tribunal.
4.2. Sri. Padmannavar, represented by
respondents No.9 to 11 and 13 to 20, who
were the tenants of the land bearing Survey
No.72/2 measuring 5 acres 4 guntas and
Survey No.85/2 measuring 6 acres 32 guntas
situated at Benakanahalli village, District and
Taluk Belagavi.
4.3. The said property is owned by Sri. Madhukar
Omanna Muchandi, who sold the properties to
Sri. Madan Potdar on 01.10.1965 and Potdar
was the owner of the property from
01.03.1974 till 27.10.2022 when the Tribunal
passed the order.
4.4. The said Potdar had recognized
Sri.Padmannavar as a tenant, and the lands
were in possession of Padmannavar's family as
- 55 -
NC: 2025:KHC-D:5091
on 01.03.1974. The owner, having admitted
the tenancy of Sri. Padmannavar before the
Tribunal, the question of the petitioner now
claiming that there was a surrender made of
the tenancy is not permissible or acceptable.
4.5. The name of the tenant was found in the
record of rights from 1953-54, as also 1954-
55. When the owner and the tenant have
admitted the tenancy, the Land Tribunal could
only pass an order of grant of occupancy
rights, which has rightly been done by the
Tribunal, and the said order cannot be found
fault with.
4.6. The aforesaid Madhukar Muchandi sold the
property in favour of Potdar, who executed the
GPA in favour of the son of Madhukar
Muchandi i.e., Omanna @ Dhananjay
Muchandi on 31.09.1992. The said
- 56 -
NC: 2025:KHC-D:5091
transaction, as claimed by the petitioner, is a
void transaction.
4.7. The land having been vested with the
government on 01.03.1974, on account of the
land being tenanted land, no such transaction
could have occurred. As on that date, the Land
Tribunal was seized of the matter, and as
such, any transaction would be hit by the
provisions of the Land Reforms Act.
4.8. The so-called surrender of tenancy has not
been established by the petitioner or his
predecessor, who is the owner of the land. The
owner of the land, during the pendency of the
proceeding before the Tribunal, has entered
into a transaction to try and deprive the
tenant of the property. It was for the owner to
have established the surrender, succeeded in
the matter, and thereafter sold the property.
In the present case, the owner neither has
- 57 -
NC: 2025:KHC-D:5091
established the surrender of tenancy nor has
succeeded before the Tribunal.
4.9. The question of the petitioner stepping into
the shoes of the owner, trying to assert
surrender is not permissible. Though the
petitioner had also impleaded himself in the
proceeding before the Land Tribunal and
asserted surrender of tenancy, even the
petitioner has not established the so-called
surrender.
4.10. No evidence in this regard has been laid, even
despite opportunities having been granted.
There are factual findings of the Tribunal as
regards the tenancy and the same cannot be
dislodged by a subsequent purchaser from the
owner. The petitioner did not get any right in
terms of forms when the sale has happened
during the pendency of the proceedings for
consideration of Form 7.
- 58 -
NC: 2025:KHC-D:5091
4.11. The Land Reforms Act and the amendment
made thereto being for beneficial purposes of
providing rights to a tenant, the beneficial
import of the said enactment is sought to be
negated by the petitioners, contending they
have purchased the property, which cannot be
accepted.
4.12. He reiterates that the surrender of tenancy
was to be established by the owner, which has
not been so established. He relies upon the
decision of the Hon'ble Apex Court in the case
of Ramchandra Keshav Adke & Ors Vs.
Govind Joti Chavare And Ors12, more
particularly para nos. 7 to 25 thereof, which
have been reproduced hereunder for easy
reference:
7. The common question that falls to be
determined in these appeals is whether in
the circumstances of this case, the alleged
surrender by the tenant was valid?
12 1975(1) SCC 559
- 59 -
NC: 2025:KHC-D:5091
8. The Deputy Collector and the Tribunal
have concurrently answered this question in
the negative on the threefold ground : (i)
That the so-called surrender was a sham
transaction because the tenant continued
thereafter to be in possession and paid rent
to the landlord upto 1959; (ii) That Circle
Officers were not empowered to, dispose of
tenancy cases and as such Shri Bhokare's
order, dated September 18. 1953, was
without jurisdiction and (iii) That the
surrender had not been verified as required
by law.
9. The High Court upheld the finding on
ground (i), the same being a finding of fact
not shown to be erroneous. It did not think it
necessary to go into the second ground.
Regarding the third ground, it held that the
alleged surrender was a nullity as there was
no compliance with the mandatory
requirements of s.5(3) of the Bombay
Tenancy Act, 1953 read with Rule 2-A in
regard to the verification of a surrender.
10. Section 5(3)(b) of the Act, at the
material time, was as follows
"A tenant may terminate the tenancy at
any time by surrendering his interest as a
tenant in favour of landlord. be Provided
that such surrender shall be in writing and
shall 'Lie verified before the Mamlatdar in
the manner prescribed."
11. The manner of such verification has been
prescribed by Rule 2-A, in these terms :
"The Mamlatdar when verifying a surrender
of a tenancy by a tenant in favour of the
landlord under clause (b) of Subsection (3)
of section 5, shall satisfy himself, after such
enquiry as he thinks fit, that the tenant
understands the nature and consequences
of the surrender and also that it is
voluntary, and shall endorse his findings in
that behalf upon the document of
surrender."
- 60 -
NC: 2025:KHC-D:5091
12. It will be seen from a combined reading
of these provisions that a surrender of
tenancy by a tenant in order to be valid and
effective must fulfil these requirements : (1)
It must be in writing. (2) It must be verified
before the Mamlatdar. (3) While making such
verification the Mamlatdar must satisfy
himself in regard to two things, namely, (a)
that the tenant understands the nature and
consequences of the, surrender, and (b) that
it is voluntary. (4). The Mamlatdar must
endorse his finding as to such satisfaction
upon the document of surrender.
13. Mr. Desai, learned Counsel for the
appellants contends that the, provisions of
Rule 2-A are directory and not mandatory;
that in any case there has been a substantial
compliance with the requirements of the
relevant provisions of the Act and the Rule. It
is submitted that the deed of surrender
executed by the tenant was presented along.
with the application of the landlord, to the
Mamlatdar; that the Circle Officer exercising
the powers of Aval Karkun, then made an
enquiry and recorded the statements of the
tenant and the landlord to ascertain whether
the surrender had been intelligently and
voluntarily made by the tenant, and that it
was only after verifying the requisite facts,
the Officer made the order directing delivery
of possession to the landlord and deletion of
the tenant's name from the record of rights.
It is argued that the mere fact that the Circle
Officer's order or endorsement was strictly
not in the form prescribed, would not
invalidate the surrender. In this connection,
the learned Counsel drew our attention to
this sentence in the judgment of the Tribunal
: "But there is no doubt that the above
formalities were gone through before the
Circle Officer".
14. Thus, the first point to be considered is,
whether the requirements, of these
provisions are mandatory or directory. "No
universal rule", said Lord Campell", "can be
- 61 -
NC: 2025:KHC-D:5091
laid down as to whether mandatory
enactments shall be considered directory
only or obligatory with an implied nullification
for disobedience. It is the duty of Courts of'
justice to try to get at the real intention of
the legislature by carefully attending to the
whole scope." Such intention of the
legislature is therefore to be ascertained
upon a review of the language, subject
matter and importance of the provision in
relation' to the general object intended to be
secured, the mischief, if any, to be prevented
and the remedy to be promoted by the Act.
15. Prior to the enactment of the Bombay
Tenancy Act, 1939, the laws governing the,
relations between landlords and tenants in
the State did not ensure equal status of
contract or agreement to the contracting
parties inasmuch as the tenants were in a
much inferior position. The tenants had no
security of tenure. nor any protection against
eviction or rack-renting. Bombay Act 29 of
1939 was the first measure enacted to
remedy these evils and to improve the
condition of tenants of agricultural lands in
the Province.
16. The Bombay Act 67 of 1948 registered an
advance in the matter of ameliorating the lot
of ryots. It marked a big step taken in the
post-Independence era by the State
legislature towards implementation of the
policy of agrarian reforms. Chapter 11 of the
Act deals with tenancies in general. Sections
5 and 15 are in this Chapter. Chapter III
makes provision for special rights and
privileges of tenants and allied matters. The
provisions in these Chapters confer on
protected tenants' the right to purchase their
holdings from their landlords, to prevent
uneconomic cultivation and to create and
encourage peasant proprietorship.
17. Provision for 'surrender' of tenancy first
appeared in a bald form. without any
- 62 -
NC: 2025:KHC-D:5091
safeguards, in the Proviso to Section 5(2) of
the Act of 1948. That Proviso ran thus :
"Provided that any tenancy may be
terminated by a tenant before the expiry of
a period of ten years by surrendering his
interest as a tenant in favour of landlord."
18. In its unguarded form, the provision was
inadequate, and vulnerable. It was
susceptible to abuse. Under its cloak,
scheming landlords could squeeze out
tenants, or induce them by questionable
means to leave the protective umbrella of the
Act. The Bombay,(Amendment) Act 33 of
1952, which came into force on 12-1-1953,
recast this provision and hedged round the
surrender with effective safeguards. It
substituted sub-section (3)(b)-as reproduced
by us ,earlier in this judgment-for the old
Proviso in Section 5.
19. The language of s.5(3)(b) and Rule 2-A is
absolute, explicit and peremptory. The words
"Provided that" read with the words "-shall
be", repeatedly used in s.5(3)(b), make the
termination of tenancy by surrender entirely
subject to the imperative conditions laid
down in the Proviso. This Proviso throws a
benevolent ring of protection around tenants.
It is designed to protect a tenant on two
fronts against two types of dangers-one
against possible coercion, undue influence
and trickery proceeding from the landlord,
and the other against the tenant's own
ignorance, improvidence and attitude of
helpless self-resignation stemming from his
weaker position in the tenant-landlord
relationship.
20. Thus, the imperative language, the
beneficient purpose and importance of these
provisions for efficacious implementation of
the general scheme of the Act all unerringly
lead to the conclusion that they were
intended to be mandatory. Neglect of any of
these statutory requisites would be fatal.
Disobedience of even one of these mandates
- 63 -
NC: 2025:KHC-D:5091
would render the surrender invalid and
ineffectual.
21. Having seen that the requirements
of s.5(3)(b) and Rule 2A are obligatory, and
not directory, it remains to be considered
whether these imperatives have been
substantially complied with in the manner
prescribed, and if not, what is the
consequence of non-compliance ?
22. The question of inherent jurisdiction
apart, all that the Circle Officer did in this
case, was that he recorded the statements of
the 84 5 tenant and landlord and made the
order-which we have reproduced in full
earlier in this judgment. Although in this
order he referred to the tenant's statement
"that he does not want to cultivate the same
any longer and so he is surrendering the
possession willingly along with crops and also
the right as pro. tenant", he did not say a
word that he was satisfied that the tenant
had voluntarily made the surrender after
understanding its nature and consequences,
much less did he endorse his satisfaction on
the tenant's deed of surrender as required by
Rule 2-A. Verification of the surrender implies
that the authority was satisfied as to the
statutory requisites after due enquiry. Such
satisfaction of the authority was the essence
of the whole thing. In other words, this
requirement as to the recording of its
satisfaction by the authority in the manner
prescribed by the Rule, was the substance of
the matter and not an empty formality. In
the absence of the requisite endorsement,
therefore, it cannot be said that there has
been even a substantial compliance with the
statutory requirements.
23. Mr. Desai's contention that the Tribunal
had found that the Circle Officer had
complied with all the formalities prescribed
by law, does not appear to be correct. The
sentence from which it is sought to be
spelled out should not be torn from its
- 64 -
NC: 2025:KHC-D:5091
context. Earlier in its judgment, the Tribunal
had clearly said in concurrence with the
Deputy Collector, that the surrender had not
been verified as required by law.
24. Next point to be considered is, what is
the consequence of noncompliance with this
mandatory procedure?
25. A century ago, in Taylor v. Taylor(1),
Jassel M. R. adopted the rule that where a
power is given to do a certain thing in a
certain way, the thing must be done in that
way or not at all and that other methods of
performance are necessarily forbidden. This
rule has stood the test of time. It was applied
by the Privy Council, in Nazir Ahmed v.
Emperor(2) and later by this Court in several
cases(3), to a Magistrate making a record
under ss. 164 and 364 of the Code of
Criminal Procedure, 1898. This rule squarely
applies "where, indeed, the whole aim and
object of the legislature would be plainly
defeated if the command to do the thing in a
particular manner did not imply a prohibition
to do it in any other.(4)" The rule will be
attracted with full force in the present case
because non-verification of the surrender in
the requisite manner would frustrate the very
purpose of this provision. Intention of the
legislature to prohibit the verification of the
surrender in a manner other than the one
prescribed, is implied in these provisions.
Failure to comply with these mandatory
provisions, therefore, had vitiated the
surrender and rendered it non-est for the
purpose of s. 5 (3) (b).
4.13. By relying on Ramchandra Keshava Adke's
case, he submitted that the so-called
surrender claimed by the petitioner is a sham
- 65 -
NC: 2025:KHC-D:5091
transaction. The tenant continued to be in
possession, which tenancy has been accepted
by the landlord. When the landlord accepts the
tenancy as on 01.03.1974, the question of
surrender of tenancy in the year 1957 would
not arise.
4.14. Though he submits that the procedure under
Section 5(3)(b) of the Bombay Tenancy and
Agricultural Lands Act, 1948, has not been
followed, his alternate submission is that, the
same would be irrelevant once the landlord
admits the continuance of the tenancy. The
alleged surrender has not even been acted
upon, and as such, the petitioner, who is a
subsequent purchaser, cannot claim any rights
thereunder.
4.15. He relies upon the decision of the Hon'ble
Apex Court in the case of Abdul Ajij Shaikh
- 66 -
NC: 2025:KHC-D:5091
Jumma and Others13, more particularly para
nos. 2, 3, and 4 thereof, which are reproduced
hereunder for easy reference:
2. The contention raised by the appellants
before the Tribunal that the tenant had
surrendered the lands in accordance with law
on 21-2-1955 and that he was not in
possession of the lands in question on the
appointed day (15-6-1955) was repelled by
the Tribunal. This very contention has been
reiterated before us on behalf of the
appellants in this appeal. We agree with the
reasoning and conclusion of the Tribunal
Tenancy and Agricultural Lands Act, 1948
(the BTAL Act) as it stood at the material
time. There was no such order passed by any
competent authority under the BTAL Act,
evidencing the surrender in accordance with
the provisions of the Act.
3. Under the circumstances the submission
urged by the appellants that the tenant had
surrendered his tenancy in favour of the
appellants on 21-2-1955 cannot be acceded
to or sustained. Such being the position the
appellants cannot succeed. The appeal,
therefore, fails and is dismissed with no order
as to costs.
4. The interim stay granted by this Court
earlier will stand vacated. The Revenue
Authorities under the BTAL Act are directed
to ensure that the respondents are put in
possession of the lands in question as early
as possible and in any case before the expiry
13 2009 (17) SCC 769
- 67 -
NC: 2025:KHC-D:5091
of six months from today subject however to
the liberty to the appellants thereto before,
to remove their standing crops, if any.
4.16. The Tribunal has considered the aspect of
surrender and rejected it. There being a
finding of fact by the Tribunal, the petitioner
cannot raise a dispute as regards factual
contentions before this Court.
4.17. On the above basis, he submits that the
petition is required to be dismissed.
5. Sri. M. M. Kannur, learned Additional Government
Advocate, supports the finding of the Tribunal and
submits that the Tribunal has considered all the
factual aspects there being no evidence as such led
in respect of the surrender, the land continues to be
the tenanted land and vested in the Government of
Karnataka on 01.03.1974, the landowner, having
accepted the tenancy, the Tribunal has rightly passed
the impugned order, and as such, he submits that he
- 68 -
NC: 2025:KHC-D:5091
supports the case of the respondents and submits
that the above petition is required to be dismissed.
6. Heard Sri. Prashanth F. Gowder, learned counsel for
the petitioner, Shri Mrithunjaya Tata Bangi, learned
counsel for respondents No.9 to 11 and 13 to 20 and
Sri. M. M. Kannur, learned A.G.A. for respondent
No.1.
7. The points that would arise for the consideration of
this court are:
1. Whether surrender of tenancy under
Section 5 (3) of the Bombay Tenancy and
Agricultural Lands Act, 1948, can be
claimed by a subsequent purchaser from
the landowner for dismissal of Form 7A
filed by an alleged tenant?
2. Whether the petitioner and/or the
landowner have established surrender of
tenancy by the tenant?
3. Whether the order passed by the Land
Tribunal suffers from any legal infirmity
requiring this Court to intercede?
- 69 -
NC: 2025:KHC-D:5091
4. What Order?
8. I answer the above points as under
9. ANSWER TO POINT NO.1: Whether surrender of
tenancy under Section 5 (3) of the Bombay
Tenancy and Agricultural Lands Act, 1948, can
be claimed by a subsequent purchaser from the
landowner for dismissal of Form 7A filed by an
alleged tenant?]
9.1. It is not in dispute that the petitioners are
subsequent purchasers from the landowner.
The contention of Sri Prasant Goudar, learned
counsel for the petitioners is that the tenancy
having been surrendered by the tenant under
Section 5 of the Act of 1948, an application in
terms of Form-7 for grant of occupancy rights
could not have been filed by a tenant in the
year 1974 on the coming into force of the
amendment to the Karnataka Land Reforms
Act.
9.2. His submission is that the tenant having
surrendered the tenancy and the Mamalatdar
- 70 -
NC: 2025:KHC-D:5091
having signed such surrender of tenancy, post
the said surrender there was no tenancy and as
such the land would not have vested with the
government on coming into force of the
amendment to the Land Reforms Act and the
question of a so-called tenant filing any
application for grant of occupancy rights would
not arise. In this regard various judgments
have been relied upon by him. Those
judgments were ones where a surrender had
been established and the claim was made by
the tenant.
9.3. This is a case where the so-called surrender of
tenancy is sought to be pressed in service by a
purchaser of the property from the landlord
claiming that the tenancy has been
surrendered. What is required to be seen is
whether there was a surrender of tenancy and
or that the land owner had contended that
- 71 -
NC: 2025:KHC-D:5091
there was surrender of tenancy and established
the same.
9.4. Surrender can obviously be made only to the
land owner and it is only the land owner who
could lead evidence in relation thereto.
9.5. The decision in Hanamantha Gavadu Patil's
case was one where the father having
surrendered the tenancy, it was held that the
son could not contend that there was tenancy
after such surrender by the father. The said
decision would not apply to the present case.
9.6. The decision in Arun Kumar's case was one
where there is documentary evidence indicating
surrender of tenancy.
9.7. In Vallabhbhai and Nathabhai's case, the
Hon'ble Apex Court came to the conclusion that
on surrender of tenancy, the tenancy would be
- 72 -
NC: 2025:KHC-D:5091
terminated and the relationship between
landlord and tenant would stand terminated.
9.8. The decision in Vijay Prahlad Umale's case
was where the Hon'ble Bombay High Court held
that the father not having raised a dispute as
regards surrender, his children could not raise
any dispute in relation thereto.
9.9. In Vithoba Rama Rahane's case, what was
held was that after surrender of tenancy, the
remedy of the tenant was to only file
proceedings under Section 29 of the Act of
1948 to seek for possession.
9.10. These decisions, in my considered opinion,
would not be applicable to the present facts.
Firstly, for the reason that what was required to
be considered as on the appointed date, that is,
1.03.1974, who was in possession of the
property, was it the tenant? If so, then the land
- 73 -
NC: 2025:KHC-D:5091
would vest with the government and application
for grant of occupancy under Section 48 of the
Land Reforms Act in terms of Form 7 could be
filed seeking for such occupancy rights.
9.11. In the present case, the tenant, though is
alleged to have surrendered the tenancy rights,
had made an application in Form-7 which was
considered and orders having been passed
granting occupancy rights.
9.12. The nature of transactions on the property
would also indicate that the surrender is alleged
to have been made to Sri.Madhukar Omanna
Muchandi who sold the properties to Madan
Potdar on 1.10.1965. This said, Madan Potdar
recognised Sri.Padmannavar as a tenant as on
1.03.1974 and the grant of occupancy rights
was made in favour of Sri.Padmannavar. When
the purchaser from the landlord himself were to
recognise the tenancy rights and the occupation
- 74 -
NC: 2025:KHC-D:5091
on part of the tenant, the said Madan Potdar
having sold the property to the petitioners, the
petitioners cannot claim that the tenancy had
been surrendered to the previous owner
Sri.Madhukar Omanna Muchandi who was the
vendor to the vendor of the petitioners.
9.13. As on 1974, the person to whom the surrender
of tenancy is alleged to have been made was
not the owner and was not a party to the
proceedings. The owner being Sri.Madan
Potdar, who was a party to the proceedings has
not pressed into service the so-called surrender
of tenancy. It was for the landlord to have
claimed surrender of tenancy. The petitioners
who were subsequent purchasers, in my
considered opinion, cannot contend that on
account of surrender of tenancy in the year
1958, they would become the owners, more so,
when the petitioners had entered an agreement
- 75 -
NC: 2025:KHC-D:5091
of sale on 24.10.1994 and a sale deed came to
be executed only on 31.12.2002, much after
the claim of the tenant had been filed after the
coming into force of the amendment to the
Land Reforms Act.
9.14. Thus, I answer point No.1 by holding that
a subsequent purchaser cannot set up a
claim of surrender of tenancy to the
landlord in terms of Subsection (3) of
Section 5 of the Bombay Tenancy and
Agriculture Lands Act 1948. It is for the
landlord to have set up such a surrender
and established the same.
10. ANSWER TO POINT No.2: Whether the
petitioner and/or the land owner have
established surrender of tenancy by the tenant?
10.1. Sri.Prashant Goudar, learned counsel appearing
for the petitioners has contended that in terms
of Section 5 of the Act of 1948, a surrender has
- 76 -
NC: 2025:KHC-D:5091
been made by a tenant which was verified
before the Mamlatdar in the prescribed manner
in terms of the amendment to Section 5 in the
year 1952.
10.2. He submits that the surrender has happened in
writing, the Mamlatdar had signed the
surrender in the year 1956. Once the
Mamlatdar has signed the surrender, the
surrender being complete, no contention to the
contrary could be raised by the tenant
subsequently.
10.3. Again, as indicated Supra, it is not what
occurred in the year 1956 which is required to
be considered but tenancy as on 1.03.1974
which is required to be considered. Insofar as
surrender in the year 1956 is concerned, no
evidence has been led either by the landlord or
by the petitioners to establish the said
surrender except to produce the said document
- 77 -
NC: 2025:KHC-D:5091
and contend that the surrender has been made
and given effect to. There is no witness who
has been examined in relation thereto by either
the former owner or by the petitioners. Thus,
ex-facie the same has not been established by
the petitioners.
10.4. Be that as it may, as on 1.03.1974, it is the
same tenant who is alleged to have
surrendered the tenancy who has filed an
application under Form-7 for grant of
occupancy rights and the then owner, who is a
purchaser from the earlier owner to whom the
surrender is alleged to have been made did not
object to the same nor did the said owner set
up the defence of surrender to contend that the
tenant is not in possession. Thus, both on
account of no evidence having been led by the
landowner and or the petitioners as regards the
surrender of tenancy, as also on the ground
- 78 -
NC: 2025:KHC-D:5091
that the subsequent landowner did not dispute
the tenancy and occupation of the tenant as on
1.03.1974, I am of the considered opinion that
surrender of tenancy has not been established
by the landowner and now the present owner.
11. ANSWER TO POINT No.3:Whether the order
passed by the Land Tribunal suffers from any
legal infirmity requiring this Court to intercede?
11.1. In view of my answer to points No.1 and 2, the
Land Tribunal having come to a conclusion that
surrender of tenancy has not been established
is in accordance with the facts and evidence on
record. There is no infirmity in the said finding.
12. ANSWER TO POINT NO.4: What order?
12.1. In view of my answers to the points No. 1 to 3
above, no grounds being made out, the Petition
stands dismissed.
SD/-
(SURAJ GOVINDARAJ)
JUDGE
