Jagannatha Shetty, J.
1. While disagreeing with the view taken in Rayappa Basappa Killed v. Land Tribunal (1976) 1 Kant LJ 219 : (AIR 1976 Kant 205) a Division Bench of this court has referred to a Full Bench, the following two questions of law for decision under Section 7 of the Karnataka High Court Act, 1961:
1. Whether a land held by a person in his capacity as a tenant, immediately prior to the date of commencement of the Amendment Act, which was net in his actual possession before the said date stands transferred to and vests m the State Government under Sub-section (1) of Section 44 if the land is not held by him under a lease permitted by Section 5 of the Act''
2. Whether a tenant who was lawfully entitled to cultivate the land personally immediately prior to the commencement of the Amendment Act but was wrongfully or illegally prevented from doing so, is entitled to registration of occupancy rights under Section 45 of the Act?
2. The decision on these questions depends upon the meaning and scope of the following provisions of the Karnataka Land Reforms Act 196-1 (hereinafter referred to as 'the Act'). Section 2(11) defines 'to cultivate personally' as follows :
Cultivate land on one's own account
i) By one's own labour, or
ii) by the labour of any member of one's family, or
iii) by hired labour or by servants on wages payable in cash or kind but not in crop share, under the personal supervision of one self or by member of one's family.'.
Section 2(34) defines 'tenant'. It means;
'An agriculturist who cultivates personally the land he holds on lease from a landlord and includes -
i) a person who is deemed to be a tenant under Section 4;
ii) a person who was protected from eviction from any land by the Karnataka Tenants (Temporary Protection from Eviction), Act, 1961;
iii) a person who is a permanent tenant; and
iv) a person who is a protected tenant.' Chapter III of the Act deals with conferment of ownership on tenants. Section 44 thereunder, so far as it is material, provides:
'44. 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.' Section 45(1) provides:
'45. Tenants to be registered as occupants of land on certain conditions --(1) Subject to the provisions of the succeeding sections of this Chapter, every person who was a permanent tenant, protected tenant or other tenant or where a tenant has lawfully sublet, such subtenant shall, with effect on and from the date of vesting, be entitled to be registered as an occupant in respect of the lands of which he was a permanent tenant, protected tenant or other tenant or sub-tenant before the date of vesting and which he has been cultivating personally. xx xx xx xx'
The Amendment Act referred to in Section 44 came into force with effect fromfirst March, 1974, that is, the date ofvesting of land in the State Government.
3. We will now refer to the decision in Rayappa's case, (1976) 1 Kant LJ 219 : (AIR 1976 Kant 205). While dealing with the scope, of Sections 44(1) and 45, it was observed at page 220 (of Kant LJ) : (at p. 206 of AIR):
'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., 1-3-1974, 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.'
It is thus laid down that the land which has not been in possession of the alleged tenant, and has not been personally cultivated by him immediately prior to the date of vesting, does not vest in the State Government under Section 44. In our view, the first part of the above observation appears to be not correct. It does not reflect the true scope of Section 44(1). That Section commences with the words 'All lands held by or in the possession of tenants stand transferred to and vest in the State Government.' It provides that the lands not only in the actual possession of tenants but also those held by them immediately prior to first March, 1974, shall vest in the State Government. The land held by a tenant may not be in his actual possession. The words 'To hold land' although not defined under the Act, but we can take their meaning from the Karnataka Land Revenue Act, 1964, as Section 2(B) of the Act provides that words and expressions used, but not defined shall have the meaning assigned to them in the Karnataka Land Revenue Act. Under Section 2(11) of the Karnataka Land Revenue Act, 1964 the expression 'to hold land' or to be 'a land owner or holder of land' to mean 'to be in lawful possession of land whether such possession is actual or not'. It is clear from this definition that the expression 'all lands held' used in Section 44(1) has to be understood as meaning thereby, the lands is lawful possession of a tenant, whether such possession is actual or not. Therefore, even if the land was not in actual possession of the tenant immediately prior to first March, 1974, if it was a tenanted land, it vests in the State Government. That the land cannot be registered in favour of the tenant who was not in actual possession immediately prior to first March, 1974, is not relevant for the purpose of deciding the question as to whether the land stands vested in the State Government under Section 44 of the Act. A Division Bench of this Court in Nagappa Devanna Naik v. Venkatramana Thimanna Naik, W.A. No. 580 of 1976, disposed of on 23-11-1977 : : AIR1978Kant56 has also observed to the same effect. The learned Chief Justice speaking for the Bench, said (at p. 57 of AIR):
'The Amendment Act was brought into force on 1-3-1974. So, what is relevant for the purpose of the Act and determination by the Tribunal is whether the lands in respect of which proceedings are taken under Chapter III, were tenanted lands being cultivated personally by the alleged tenants immediately prior to 1.2.1974. If the land or lands were tenanted lands, to which Section 44 is attracted, such lands vest in the State Government on 1.3.1974.'.
We, however, emphasise here that the land must have been tenanted immediately prior to first March, 1974, and not at any time in the past.
We answer the first question in the affirmative.
4. This takes us to the second question. It envisages the case of a tenant who was lawfully entitled to cultivate the lands personally immediately prior to first March, 1974, but was wrongfully or illegally prevented from doing so. The question is whether such person is entitled to registration of occupancy rights under Section 45. The answer to the question, in our view, should be in the negative. Section 45 conferring occupancy rights lays down two conditions:
(i) the person claiming must have been either a permanent tenant, protected tenant, other tenant or sub-tenant immediately before first March, 1974; and (ii) that such person must have been personally cultivating the land immediately before first March, 1974. The primary requirement for registration of occupancy rights, therefore, is that the person claiming such right must have been cultivating the land personally immediately prior to first March, 1974. If he was then out of possession by wrongful or illegal act of others, he cannot be registered as occupant. He is not entitled to occupancy right merely on the proof that the land was tenanted and so vested in the State Government.
In this context, it may not be out of place to observe that the Act provides procedures to recover possession from an unauthorised occupant by a person entitled to such possession. Sections 41, 121 and 129 provide for such remedies. The tenant who was lawfully entitled to cultivate the land personally immediately prior to first March, 1974, but was wrongfully or illegally prevented from doing so, may take recourse to any one of the remedies provided under the above Sections, and may request the Land Tribunal to defer consideration of his application till the possession of the land is restored to him. If he recovers possession in accordance with law, he may then ask the Tribunal to proceed with his application on the merits. When possession is so recovered, the Tribunal has to proceed on the basis that the tenant must be deemed to have been personally cultivating the land from the date of his dispossession till the date of restoration of possession. This clarification may, in our opinion, be sufficient to safeguard the interests of such tenants.
5. In the circumstances, we make no order as to costs.
6. Answer accordingly.