Skip to content


Thunga Bai and ors. Vs. Vishalakshi Heggadthi and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1510 of 1974
Judge
Reported inILR1975KAR739; 1974(2)KarLJ484
ActsSpecific Relief Act, 1963 - Sections 37; Karnataka Land Reforms Act, 1962 - Sections 25; Code of Civil Procedure (CPC), 1908 - Sections 115; Evidence Act, 1872 - Sections 35; Karnataka Land Reforms Act, 1961 - Sections 14; Karnataka Land Reforms (Amendment) Act, 1974
AppellantThunga Bai and ors.
RespondentVishalakshi Heggadthi and anr.
Appellant AdvocatePadubidri Raghavendra Rao, Adv.
Respondent AdvocateS.G. Sundara, Adv. for ;N. Santhosh Hegde, Adv.
Excerpt:
.....for their failure to produce the levy demand register extracts. theplaintiffs need not prove what is admitted in the pleadings of defendant 1. in the plaint the plaintiffs have stated that the suit lands were enjoyed by govinda naika and badiya naika under the family of defendant i for over 30 years......portion of the house, the defendants in about june 1973 began to exert force to trespass upon the suit lands and, when the karti paddy crop was ready for harvest the defendants were threatening to harvest the said crop. therefore they sued for permanent injunction against defendant 1 and her husband, defendant 2.4. defendant 1 in her written statement did not dispute the fact that govinda naika and badiya naika were cultivating the suit lands under her family as alleged in theplaint. she also did not deny that govinda naika and badiya naika had attorned to the receiver. her specific case as pleaded in para 4 of her written statement is that govinda naika and badiya naika were enjoying the suit lands in moieties, but after the partition in her family, govinda naika and badiya naika had.....
Judgment:
ORDER

1. This revision petition by the plaintiffs arises out of their application for temporary injunction in a suit filed for permanent injunction. The trial Court issued an ad interim order of injunction which was subsequently dissolved and that order wasaffirmed on appeal by the learned Civil Judge, Udipi. The question is whether that order calls for interference in revision by this Court,

2. The subject-matter of the suit is an agricultural holding in a locality called Shettibettu in Herga village of Udipi Taluk in the District of South Kanara. That holding described in the plaint A schedule comprises of 4 acres 37 cents of wet lands and 4 acres 38 cents of Punja lands with a farm house and appurtenant buildings. The said properties belonged to an Aliyasantana family of which defendant 1 was a member. In the partition effected in the said family in some year after 1965, the suit A schedule properties were allotted to the share of defendant 1. Before the date of the said partition, the suit properties were in the enjoyment of two, chalgeni tenants, viz., Govinda Naika and Badiya Naika.

3. Govinda Naika died in about the year 1971 and Badiya Naika died in the year 1972. Plaintiff 1 is the widow and plaintiffs 2 to 7 are the children, of Govinda Naika; plaintiff 8 is the widow and plaintiffs 9 and 10 are the children, of Badiya Naika. The plaintiffs filed the suit in the last week of September 1973 for permanent injunction restraining the defendants, their men and those claiming under them from trespassing upon the plaint A schedule properties and harvesting the Karti paddy crop standing thereon. Their case was that the plaint A schedule properties were being enjoyed by Govinda Naika and Badiya Naika as chalgeni tenants under the family of defendant 1 for over 30 years, that when a Receiver was appointed in O. S. 58 of 1961 on the file of the Court of the Munsiff, Udipi, the said Govinda Naika and Badiya Naika attorned to the Receiver and after the A schedule properties came to be allotted to the share of defendant 1 they continued as tenants, that on the death of Govinda Naika in the year 1971 and of Badiya Naika in 1972 the plaintiffs who are the heirs have continued as tenants of the said lands. Their further case is that Govinda Naika and Badiya Naika were residing separately with their respective families in portions of the same farm-house in the suit property, that at the request of defendant 1 made about 2 years prior to the institution of the suit, Badiya Naika allowed the defendants to occupy the portion of the house wherein he resided for a temporary period of three months to enable the defendants to construct a new house. Having occupied the portion of the house, the defendants in about June 1973 began to exert force to trespass upon the suit lands and, when the Karti paddy crop was ready for harvest the defendants were threatening to harvest the said crop. Therefore they sued for permanent injunction against defendant 1 and her husband, defendant 2.

4. Defendant 1 in her written statement did not dispute the fact that Govinda Naika and Badiya Naika were cultivating the suit lands under her family as alleged in theplaint. She also did not deny that Govinda Naika and Badiya Naika had attorned to the Receiver. Her specific case as pleaded in para 4 of her written statement is that Govinda Naika and Badiya Naika were enjoying the suit lands in moieties, but after the partition in her family, Govinda Naika and Badiya Naika had put her in possession of the properties which were in their enjoyment. According to her, Badiya Naika surrendered possession including the portion of the house in his occupation about 5 years prior to the filing of her written statement and Govinda Naika surrendered possession of the lands in his possession about 2 years ago; but he did not surrender possession of the portion of the house wherein he resided. It is necessary to set out the material portion of para 4 of the written statement of defendant 1. It reads:

'The defendant submits that immediately after the registered partition in her family she requested Govinda Naika and Badia Naika to put her in possession of the properties in their enjoyment and the house situated therein. That at the time the tenants Govinda Naika and Badia Naika were enjoying the plaint properties on moiety they were enjoying the house situated there in portions. At the request of the defendant Badia Naika put her in possession of all properties in his possession including the portion of the house by vacating the same and by taking up his residence elsewhere, some 5 years ago. Govinda Naika promised to put the defendant in possession and in pursuance of his promise did so 2 years thereafter by retaining only the right of residence in the portion of the house where he was residing.'

5. It is clear from the pleadings of defendant 1 that she admits that Govinda Naika and Badia Naika were the tenants of the suit properties. Her sole defence is that in about the year 1968 Badiya Naika and in 1971 Govinda Naika had surrendered possession of the moieties of the properties in their respective enjoyment.

6. The Karnataka Land Reforms Act, 1961, (hereinafter called the Act) came into force on 2-10-1965. The object of the said Act, inter alia, is to terminate the relationship of landlord and tenant and to confer ownership rights on the tenants. Landlords are prohibited from evicting their tenants. Section 14 of the Act permitted resumption subject to the terms and conditions laid down therein. Section 14 has now been deleted by the Karnataka Amendment Act No. 1 of 1974. Section 25 provides for surrender of lands held by a tenant. The said section, before it was amended by Karnataka Amendment Act No. 1 of 1974 read thus:

'25 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 court.

(2) Permission under Sub-section (1) shall be granted if, after making such inquiry as may be prescribed, the court is satisfied that the proposed surrender is bona fide and the land surrendered does not exceed the extent of land which landlord could have resumed from his tenant under Section 14; in other cases, the permission shall be refused.....'

By Section 25 a bar was imposed against surrender of any land held by a tenant without the previous permission in writing of the 'court'. The Court can grant permission after making enquiry if it is satisfied that the proposed 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. The section further barred the landlords from entering upon the land surrendered by their tenants without the previous permission in writing obtained from the Court. Thus there is a prohibition against surrender of any land by a tenant and a further prohibition against the landlord from entering upon the land surrendered by the tenant, without the previous permission in writing of the Court.

7. After the Act came into force Govinda Naika and Badiya Naika who were the tenants could not have surrendered the lands held by them without the previous permission in writing of the Court; defendant 1 could not have entered upon the lands without the previous permission in writing of the Court. It is not the case of defendant 1 that any previous permission of the Court had been obtained for the alleged surrender, authorising her to enter upon the lands.

8. The learned Civil Judge has held that the documents produced in the case show that the plaintiffs were in possession of the suit lands upto 1971; but they have not shown that they were in possession subsequent to 1971 and the documents produced by defendant 1 show that she has been in possession subsequent to 1971. Therefore, he has refused to interfere with the order made by the learned Munsiff. The argument advanced on behalf of the plaintiffs that the plea of oral surrender contrary to the provisions of Section 25 of the Act ought not to be accepted by the Court and the plaintiffs should be presumed to be in legal possession of the properties has been repelled by the learned Civil Judge on the ground that in a suit for injunction, the Court is not concerned with the legality of possession.

9. It was urged by Sri Padubidri Raghavendra Rao, learned counsel for the petitioners, that the order of the Court below refusing to give effect to the provisions of Section 25 of the Act and its failure to draw the presumption that possession of the tenants which has been accepted upto 1971 has continued, have vitiated the conclusion of the Civil Judge that the plaintiffs have not madeout a prima facie case of possession, and further that the order is perverse and unjust and, therefore, calls for interference in revision.

10. Shri S. G. Sundaraswamy, learned counsel for the respondents, submitted that there is no error of jurisdiction committed by the Court below calling for interference in revision, that on a consideration of the materials on record the Court below agreeing with the trial Court has held that the plaintiffs have not shown they are in possession of the suit lands subsequent to 1971 and that finding being a question of fact is not open to correction in revision. He further contended that the remedy of the plaintiffs was to apply for restoration of possession on the ground of wrongful dispossession, under Section 129 of the Act.

11. Defendant 1 who is the landlord has admitted in her written statement that Govinda Naika and Badiya Naika were the tenants of the suit lands when the Act came info force on 2-10-1965 and subsequently, until the dates of the alleged oral surrenders in 1968 and 1971. It is not the case of defendant 1 that she had obtained any previous permission in writing from the Court for the alleged surrender. Where the landlord admits that the tenants were in possession when the Act came into force and continued to be in possession even thereafter and there is no surrender by the tenants in the manner allowed under Section 25, was the Court below right in holding that the defendants are in possession and the plaintiffs have not proved their possession? The learned Civil Judge has stated in his order under revision :

'The defendants are the owners of the property. There is legal presumption that they are always in possession as they are owners. The plaintiffs claim to be in possession as tenants. The burden is on them to show that they are in possession of the suit properties. The first defendant need not produce any documents to show her possession.'

If there is a presumption that the owner is in possession and he need not produce any documents to show his possession, is there no legal presumption that a tenant admittedly in possession on the date when the Act came into force, has continued in possession of the lands? In the context of the Act, there can be no presumption that a landlord is in possession where admittedly on the date when the Act came into force, the lands were in the possession of tenants and there has been neither a surrender nor a resumption in accordance with the provisions of the Act.

12. The learned Civil Judge has held against the plaintiffs as in his view they should have produced the Levy Register extracts for the years 1972 and 1973 which they have failed to do. Levy Demand Register is not prepared under any statute or statutory rule. It is prepared under executive orders for the purpose of issuing foodgrain levy demands from cultivators. The learned Civil Judge reliedupon the survey numbers noted on some levy demand notice produced by defendant 1 and held that defendant 1 had proved her possession subsequent to 1971. Unless the official responsible for preparing the levy demand notices is examined, no reliance can be placed on the survey numbers etc., noted in the said notices.

13. In my opinion, the order of the Court below is wholly vitiated by the erroneous view of the law it has taken with regard to presumption as to possession of lands held by tenants and the reliance placed en levy demand notices issued to defendant 1 and also because it has drawn an inference against the plaintiffs for their failure to produce the levy demand register extracts. When Govinda Naika and Badiya Naika were admittedly the tenants of the suit lands up to 1971 when the Act was in force and there has been no surrender by them under Section 25 which alone can be taken cognisance of by the Courts, the Court below should have drawn the legal presumption that their possession has continued. In order to obtain the relief of injunction it was not necessary for the plaintiffs to produce documents showing that their possession continued even after 1971. The possession of the suit lands in the eye of law always remained with the tenants. The entry of defendant 1 on the suit lands is prohibited by Section 25(1) of the Act. That prohibition is an injunction against landlords not to enter upon the lands held by tenants without the previous permission in writing of the Court. Each entry by defendant 1 upon the suit lands constitutes an act of trespass and a clear invasion of the legal rights of the plaintiffs. When the plaintiffs have shown that they have a legal right and that legal right is invaded by the unlawful acts of the defendants, they are entitled to the relief of injunction at the hands of the Civil Court. To hold otherwise on the basis of the affidavits filed in support of the case of defendant 1 and the levy demand notices produced, is to indirectly uphold the alleged oral stir-render notwithstanding the prohibition that the landlord shall not enter upon the lands held by her tenants.

14. The argument of the learned counsel for the respondents that the remedy of the plaintiffs is to seek possession on the ground of dispossession under Section 129 of the Act is no answer to the case established by the plaintiffs that they are in legal possession and that their right is with impunity violated by the unlawful acts of defendant 1. The plaintiffs do not admit that they have been dispossessed. That the plaintiffs are residing in a portion of the farm-house is admitted by defendant 1.

15. The learned Civil Judge holds that it is not shown that items 7 and 8 of the plaint A schedule are included in their lease as the relevant survey numbers are not shown in the lease deeds produced. Theplaintiffs need not prove what is admitted in the pleadings of defendant 1. In the plaint the plaintiffs have stated that the suit lands were enjoyed by Govinda Naika and Badiya Naika under the family of defendant I for over 30 years. That has not been denied in the written statement of defendant 1. Her specific case as set out in paragraph 4 of her written statement extracted above, is that Govinda Naika and Badiya Naika surrendered the suit schedule properties. Therefore, it is not the case contended in the pleadings of defendant 1 that items 7 and 8 were not included in the leasehold of Govinda Naika and Badiya Naika. The wilful disregard on the part of the Court below to take note of the admission in the pleadings vitiates its finding that the plaint items 7 and 8 of the A schedule are not included in the leasehold of the plaintiffs.

16. This Court is always reluctant to interfere with discretionary orders made by the subordinate Courts. But where the orders of the Court below are perverse and unjust, it is the duty of the High Court in the exercise of its power under Section 115 of the Code of Civil Procedure to interfere. A decision can be said to be perverse when the material pleadings are wilfully disregarded or when there is some conscious violation of the rule of law or of procedure on the part of the subordinate Court. In the instant case, there is a wilful disregard of the pleadings and there is a conscious violation of the rule of law. Therefore, I allow this revision petition, reverse the order of the Court below and make an order of injunction restraining defendant 1, her agents and men from entering upon the suit lands until the disposal of the suit.

17. Petitioners are entitled to thecosts of this revision petition.

18. Petition allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //