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Siddamma and anr. Vs. State of Karnataka and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 27 of 1978
Judge
Reported inAIR1979Kant211; ILR1979KAR579; 1979(1)KarLJ233
ActsConstitution of India - Article 226(1); Karnataka Land Reforms Act, 1961 - Sections 25, 48-A, 63 and 65 to 79; Karnataka Land Revenue Act, 1964 - Sections 133; Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 4-B, 5(3)(1) and 88-B; Hyderabad Tenancy and Agricultural Lands Act, 1950 - Sections 19
AppellantSiddamma and anr.
RespondentState of Karnataka and ors.
Excerpt:
.....acceptable. ..i am satisfied that the entire extent of land in possession of the petitioner including the land now surrendered by the opponents would not exceed the ceiling limit contemplated under s. (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. 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. parthasarathy that unless there is an actual taking of possession by the landlord the..........25-11-1977, passes by the land tribunal, hunsur, produced as exhibit-d. by the said order, the land tribunal has granted the occupancy right in favour of the 3rd respondent in respect of an area of 2 acres in the agricultural land bearing survey no. 298, situated at hussainpura nala village, taluk hunsur, district mysore.2. the first petitioner is the owner of the land in question and the second petitioner is the husband of the first petitioner.3. the third respondent filed an application in form no. 7 before the 2nd respondent-tribunal, under s. 48-a of the karnataka land reforms act, 1961 (hereinafter referred to as 'the act') for being registered as an occupant of the land in question. the first petitioner came to be impleaded in the said petition in pursuance of the order dated.....
Judgment:
ORDER

1. This petition, under Article 226(1)(b) and (c) of the Constitution of India is directed against the order bearing No. K. L. R. F. 129/77-78 dated 25-11-1977, passes by the Land Tribunal, Hunsur, produced as Exhibit-D. By the said order, the Land Tribunal has granted the occupancy right in favour of the 3rd respondent in respect of an area of 2 acres in the agricultural land bearing Survey No. 298, situated at Hussainpura Nala Village, taluk Hunsur, district Mysore.

2. The first petitioner is the owner of the land in question and the second petitioner is the husband of the first petitioner.

3. The third respondent filed an application in Form No. 7 before the 2nd respondent-Tribunal, under S. 48-A of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as 'the Act') for being registered as an occupant of the land in question. The first petitioner came to be impleaded in the said petition in pursuance of the order dated 18-11-1977 as stated in form No. 7, produced as Exhibit 'C'. The case of the third respondent was that he had been in possession of the land in question as a tenant for the last 25 years as stated in Form No. 7 Ex. 'C' and has been cultivating the same personally and as such, he was entitled to be registered as an occupant of the land in question. The first petitioner opposed the said application and filed her objections as per Exhibit-F, inter alia contending that the land in question originally belonged to her father and the 3rd respondent was the tenant prior to 1969; that her father filed an application for resumption against the 3rd respondent and other tenants under S. 14 of the Act in the year 1967, before the Land Tribunal, Mysore, in L. T. P. No. 604/67; that in the said proceeding the 3rd respondent filed an application for permission to surrender the land in question along with 1 acre and 8 guntas of the same survey number S. 25 of the Act as it stood then; that the then Tribunal, after being satisfied that the proposed surrender was bona fide and that the extent of the holdings of the landlord did not exceed the ceiling area, granted permission to the 3rd respondent to surrender and further permitted the landlord to enter upon the land so surrendered and to cultivate the same personally. It was also further contended by the first petitioner that in pursuance of the said surrender, her brothers came into possession of the land in question (as by then her father had expired and her brothers had come on record) along with the other portion in pursuance of the order of the Tribunal and continued to cultivate the same personally. Subsequently, there was a partition in the family in the year 1973 and in that partition, the land in question was given to her share and from that time onwards, she has been in actual possession and has been cultivating the same personally. It was also contended that the land in question having not been in possession of the alleged tenant either on 1-3-1974 or immediately prior to that date, the same did not vest in the State Government and as such, as application in Form No. 7 was not maintainable. The first petitioner also contended that the application filed by the 3rd respondent was barred by time and the same was not accompanied by an application or an affidavit to explain the delay and as such, the said application was not maintainable.

4. The Tribunal, by the order dated 25-11-1977, had granted the occupancy right in favour of the 3rd respondent.

5. Shri G. S. Visweswara, the learned Counsel appearing for the petitioners, submitted that the land in question was surrendered long prior to 1-3-1974 in accordance with the provisions of S. 25 of the Act as it stood then, and the then Land Tribunal functioning under the Act permitted the 3rd respondent to surrender the land in question and also permitted the landlord to enter upon the land and to cultivate the same personally and in pursuance of that, the landlord has been in possession as revealed from the entries in the record of rights which are presumed to be correct until the contrary is proved as per S. 133 of the Karnataka Land Revenue Act, 1964 and further, the first petitioner got the said land in the partition in the year 1973 and from that year, she has been in actual possession and has been personally cultivating the same and that therefore, the 3rd respondent was not the tenant of the land in question either on 1-3-1974 or immediately prior to that date and further he was also not in possession on that date and was not personally cultivating the same; therefore the Tribunal acted without jurisdiction in granting the occupancy right in favour of the 3rd respondent without considering the evidence and without raising the statutory presumption regarding the entries in the record of rights. Mr. Visweswara also contended that in view of the surrender made by the 3rd respondent and accepted by the then Land Tribunal, the tenancy came to an end and as such, the relationship of the landlord and the tenant ceased to exist by reason of the passing of the order dated 22-12-1969 by the Land Tribunal, Mysore, in L. T. P. No. 604/67, therefore, the 3rd respondent is not entitled to be registered as an occupant only on the basis of his alleged possession if any. In support of his contentions, Mr. Visweswara referred to the documents produced as Exhibits A and B, and the entries in the record of rights produced as Exhibit J, K and L and also the other documents produced in the petition. Exhibit-A is a true copy of the affidavit filed by the 3rd respondent before the Land Tribunal, Mysore, in LTP 604/67 for permission to surrender the land in question. Exhibit-B is a copy of the order dated 22-12-1969 passed by the Land Tribunal, Mysore, in LTP 604/67 permitting the 3rd respondent to surrender the land in question and also permitting the landlord to enter upon the land in question and to cultivate the same personally. Exhibits J, K and L are the extracts of the record of rights of the land in question for the years 1970-71 to 1977-78. In Exhibit-J, in the cultivators' column, for the years 1970-71 to 1974-75, the name of Sri Revanna who is said to be the brother of the first petitioner has been entered. In column No. 11 the name of the first petitioner has been entered in respect of 2 acres. The name of the first petitioner has also been entered in Exhibit-J in the cultivators' column for the years 1974-75 in respect of 2 acres of land. In Exhibits K and L also, the name of the 1st petitioner has been entered in respect of two acres as the person personally cultivating the land in question.

6. Shri B. T. Parthasarathy, the learned Counsel appearing for the third respondent, contended that though the 3rd respondent made an application proposing to surrender the land in question and though the Tribunal granted the permission to surrender, there was no actual surrender of the possession of the land in question to the landlord by the 3rd respondent and he continued to remain in possession of the land and has been personally cultivating the same even to this date. Therefore the learned counsel contended that as there was no actual surrender of the possession of the land, the tenancy did not come to an end and the passing of the order permitting the 3rd respondent to surrender did not have the effect of putting an end to the tenancy as long as the landlord did not take possession of the land proposed to the surrendered. Permission to surrender is not actual surrender. As such, the order passed by the Land Tribunal granting the occupancy right in favour of his client is perfectly valid and is not liable to be disturbed.

7. In view of the aforesaid contentions of both parties, the points that emerge for decision in this petition are:-

(i) What is the effect of the order passed by the Land Tribunal, Mysore in LTP 604/67, dated 22-12-1969 granting permission to the 3rd respondent to surrender the possession the land and further permitting the landlord to enter upon the land surrendered and cultivate the same personally?

(ii) Whether the order of the Tribunal is vitiated by reason of the fact that it has not taken into consideration the entries in the record of rights pertaining to the land in question and has not raised necessary presumption under S. 133 of the Karnataka Land Revenue Act, arising out of the said entries?

(iii) Whether the order of the Tribunal granting occupancy right in favour of the 3rd respondent on the basis that the landlord has not obtained possession of the land in pursuance of the order of surrender and that the parties have not acted upon the order of surrender, is legal and is based upon the evidence on record ?

8. I will now take up the first point for consideration. It is not disputed that a proceeding before the Land Tribunal, Mysore, in L.T. P. No. 604/67 was instituted by the father of the first petitioner against the third respondent and others for resumption of the land in question along with other lands under S. 14(1) of the Act as it stood then. It is also not disputed that in the said proceeding, the 3rd respondent filed an application under S. 25 of the Act, for permission to surrender the land in question along with other portions of the said land because of his inability to cultivate the same and the Tribunal after being satisfied that the surrender was bona fide, granted the permission to the 3rd respondent and also permitted the landlord to enter upon the land in question and to cultivate the same personally. A true copy of the affidavit filed by the 3rd respondent in the said proceeding and also a true copy of the order passed by the then Land Tribunal, Mysore, are produced with the writ petition as Exhibits A and B respectively. The relevant portions of the order of the then Tribunal produced at Exhibit-B, read as follows:-

'3. On a careful consideration of the sworn statement of the opponents 2 to 5, I am satisfied that the proposed surrender is bona fide and consequently acceptable........................

I am satisfied that the entire extent of land in possession of the petitioner including the land now surrendered by the opponents would not exceed the ceiling limit contemplated under S. 63(1) of the Act. Consequently, I do not see any objection to grant permission for the proposed surrender by the opponents 2 to 5 in respect of the schedule land in their possession. 4. In the result, I direst under S. 25(2) of the Act, that permission be granted to the opponents 2 to 5 to surrender possession of the schedule lands in their possession. Permission is also granted to the landlord petitioner to enter upon the said lands surrendered by the opponents and cultivate the same personally.'

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.'

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 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 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 : [1975]2SCR341 :-

'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 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.

11. Turning to points Nos. (ii) and (iii), from the order of the Tribunal which is produced as Exhibit-D, it is clear that nowhere the entries in the record of rights and the presumption arising out of the said entries have been referred to by the Tribunal. In the record of rights as stated in the earlier paragraph, the name of the brother of the 1st petitioner has been entered as the person cultivating the land in question from the year 1970-71 till the land was given to the 1st petitioner in the partition in the year 1973. Thereafter the name of the petitioner has been found as the person personally cultivating the land in question. Apart from that, her name has also been entered in column No. 9 as Khathedar. The extracts of the record of rights were made available before the Tribunal in view of the provisions contained in R. 19 of the Rules framed under the Act. Section 133 of the Karnataka Land Revenue Act raises a statutory presumption in respect of the entries in record of rights. That being so, it was incumbent upon the Tribunal to raise a presumption arising out of the entries in the record of rights and also to consider the effect of the same. The order of the Tribunal is vitiated because of the fact that it has not considered the material evidence on record such as the entries in the record of rights and the effect of the same.

12. The Tribunal has proceeded to pass an order on the assumption that the tenancy did not come to an end by reason of the surrender and the contention of the 3rd respondent that he was in possession even after the land was in surrendered entitled him to obtain occupancy right. This view of the Tribunal is not sustainable in view of the finding recorded by me on point No. (i). The further finding of the Tribunal that parties did not act upon the surrender is also not based upon any evidence. On the contrary, the documentary evidence as already pointed out, is to the effect that the landlord came into possession in pursuance of the surrender and continued to cultivate the land personally. Thus, the material evidence such as the entries in the record of rights and the other documents have been completely ignored by the Tribunal while arriving at the finding that the 3rd respondent continued in possession of the land even after the surrender and the parties did not act upon the same. Further, it is not the case of the third respondent that even after the surrender, he was continued in possession of the land by the landlord as a tenant. His case as stated in Form No. 7 is that the has been in possession as a tenant for the last 25 years.

13. In view of the legal position that the tenancy came to an end by reason of the surrender made by the third respondent and the acceptance of the same by the Tribunal, the tenancy was not in subsistence either on 1-3-1974 or immediately prior to that date. As such, the land in question was not held by the 3rd respondent as a tenant either on 1-3-1974 or immediately prior to that date so as to attract provisions of S. 44(1) of the Act. In view of what has been stated above, the 3rd respondent cannot also be held to be in possession either on 1-3-1974 or immediately prior to that date. S. 44(1) of the Act as it stood on 1-3-1974 reads as follows:-

'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 S. 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government. '

The aforesaid provision takes into account even the possession of the tenants against whom a decree or order for eviction or a certificate for resumption has been issued immediately prior to the date of commencement of the Amendment Act. Whereas, the land remaining in possession of the tenants even after the surrender has not been included because of the fact that by reason of the surrender and acceptance of the same, the tenancy ipso facto comes to an end. Therefore, it is clear that the land in question was not held by the 3rd respondent on 1-3-1974 or immediately prior to that date as a tenant. Hence, the land in question did not vest in the State Government. Consequently, point No. (ii) is answered in the affirmative and point No. (iii) against the 3rd respondent.

14. For the reasons stated above, this writ petition is entitled to succeed and the impugned order of the Tribunal dated 25-11-1977 passed in Case No. K. L. R. F. 129/77-78, produced as Exhibit-D is liable to be quashed and the same is hereby quashed. Rule is made absolute.

15. Parties to bear their own costs.

16. Petition allowed.


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