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H.R. Gopalakrishnaiah (Since Deceased by His Legal Representatives H.G. Keshava Murthy S/O Late H.R. Gopalakrishnaiah, H.G. Ranganatha S/O Late H.R. Gopalakrishnaiah, H.G. Nagaraja S/O Late H.R. Gopalakrishnaiah and H.G. Gopala S/O Late H.R. Gopalakrishnaiah Represented by their G.P.A.) Vs. the Land Tribunal Represented by Its Secretary, Subbegowda (Since Deceased by His Son Javaregowda (Since Deceased by His Legal Representatives Ramegowda S/O Javaregowda and Annegowda S/O Javaregowda)), K.S. S - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 2210 of 2003
Judge
Reported inILR2008KAR456; 2008(3)KarLJ414; 2008(1)KCCR358; 2008(3)AIRKarR127
ActsKarnataka Land Reforms Act, 1961 - Sections 4; Transfer of Property Act; Bombay Tenancy and Agricultural Lands Act, 1948; Bombay Agricultural Debtor's Relief Act, 1947
AppellantH.R. Gopalakrishnaiah (Since Deceased by His Legal Representatives H.G. Keshava Murthy S/O Late H.R.
RespondentThe Land Tribunal Represented by Its Secretary, Subbegowda (Since Deceased by His Son Javaregowda (S
Appellant AdvocateB.G. Sridharan, Adv.
Respondent AdvocateNadiga Shivanandappa, Government Pleader for Respondents Nos. 1 and 4, ;N.S. Sanjay Gowda and ;A. Ravi Shankar, Advs. for Respondent No. 2 (A and B)
DispositionPetition dismissed
Excerpt:
.....inducted by a mortgagee in possession is a lawfully inducted tenant and is to be treated as deemed tenant under the act. the applicant who was inducted as a tenant by the mortgagee in possession well before 1974, the claim of applicant is sustainable. order of the tribunal granting occupancy right is justified. - 4. the contention that the said subbegowda was a tenant, who was apparently claiming under the mortgagee in possession could not claim as a tenant, for the reason that section 4 of the karnataka land reforms act, 1961 (hereinafter referred to as 'the act' for brevity) clearly excludes a mortgagee in possession and a person claiming under such a mortgagee cannot derive any larger right than what a mortgagee in possession would derive. 8. in so far as the contention that..........possession. this being the position, subbegowda, the deceased second respondent could not have claimed tenancy under him his son or grand children, in the absence of any such documents indicating such tenancy. he would also submit that mere reference to entries in the pahanies, for some years, appearing in the name of subbegowda, could not have been relied upon by the tribunal to hold that tenancy in respect of the lands have been established.4. the contention that the said subbegowda was a tenant, who was apparently claiming under the mortgagee in possession could not claim as a tenant, for the reason that section 4 of the karnataka land reforms act, 1961 (hereinafter referred to as 'the act' for brevity) clearly excludes a mortgagee in possession and a person claiming under such a.....
Judgment:
ORDER

Anand Byrareddy, J.

1. Heard the counsel for the petitioners and the counsel for the respondents.

2. The facts are as follows:

One Gopalakrishnaiah was the owner of the land in survey No. 65/1 measuring 22 guntas and the land in survey No. 65/2 measuring 26 guntas of Hassan village, Hassan Taluk, Hassan district. It is stated that he had mortgaged the said lands by way of an usufructuary mortgage under a registered deed in favour of one K.S. Subba Rao, the third respondent herein. It is contended that the deceased respondent No. 2 had filed Form No. 7 claiming occupancy rights in respect of the very lands and the Tribunal on an admission by K.S. Subba Rao, the mortgagee in possession, had granted occupancy rights, by order dated 21.1.1977, in favour of the deceased second respondent, who is now represented by his legal representatives. The said order was challenged by the petitioners in a writ petition before this Court in W.P. No. 3582/1977 and the same having been allowed, the order was set at naught. On remand, however, the Tribunal having proceeded to grant occupancy rights in favour of the claimant yet again, the petitioners are before this Court.

3. Shri B.G. Sridharan, Senior Advocate, appearing for the Counsel for the petitioners, would contend that this Court having allowed the writ petition in W.P.No. 3582/1977 setting aside the order of the Tribunal dated 21.1.1977, there was no scope for the Tribunal to have placed reliance on the statements made in the proceedings of the Tribunal held earlier and the Tribunal seeking to place reliance on a statement made by K.S. Subba Rao, who was no more on the date of the proceedings held by the Tribunal, the order suffers from an infirmity which goes to the root of the matter. The Tribunal having placed such reliance is not permissible in law. Further, he would also point out that the lands were mortgaged with possession to K.S. Subba Rao as early as in the year 1953 and while there was reference to one Appa Saheb, who was shown as a cultivator in occupation at that point of time, the said Subba Rao had taken possession from Appa Saheb as a mortgagee. There was no document to evidence the lease created either by the petitioners before the mortgage or by Subba Rao after the mortagage, nor was there any indication of any sublease from Appa Saheb from whom Subba Rao had taken possession. This being the position, Subbegowda, the deceased second respondent could not have claimed tenancy under him his son or grand children, in the absence of any such documents indicating such tenancy. He would also submit that mere reference to entries in the pahanies, for some years, appearing in the name of Subbegowda, could not have been relied upon by the Tribunal to hold that tenancy in respect of the lands have been established.

4. The contention that the said Subbegowda was a tenant, who was apparently claiming under the mortgagee in possession could not claim as a tenant, for the reason that Section 4 of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as 'the Act' for brevity) clearly excludes a mortgagee in possession and a person claiming under such a mortgagee cannot derive any larger right than what a mortgagee in possession would derive. Hence, by implication could not be deemed as a tenant in terms of express provisions of Section 4 of the Act and would therefore, submit that even if it is to be accepted, there was tenancy created by a mortgagee in possession, the same is not forthcoming. It is contended that acceptance of Form No. 7, said to have been filed by Subbegowda, ought to have been rejected at the threshold and there was no scope for the Tribunal to have placed reliance on nebulous entries to confer occupancy rights, in favour of the said respondents 2(a) and 2(b), after a lapse of 20 years.

5. Per contra, the Counsel for the respondents 2(a) and 2(b) would submit that the Tribunal has arrived at categorical findings of fact, There is no infirmity in the order. It is incorrect to state that the Tribunal has proceeded only on the basis of the statement made by K.S. Subba Rao in the earlier proceedings. The entries in favour of the predecessor of the respondents 2(a) and 2(b), Subbegowda, appear in the revenue records consistently from the year 1953. This was a circumstance which could not be displaced. There is no attempt on the part of the petitioners to have challenged the revenue entries in favour of late Subbegowda and it is therefore, not possible for the petitioners to contend that the same is rebuttable evidence, in the absence of any evidence to rebut the same. Hence, the Tribunal having placed reliance on such entries cannot be said to be irregular or infirm. The Tribunal having referred to the earlier statement of K.S. Subba Rao, in the light of the fact that he was no more at the time of later proceedings also cannot be said to be illegal or out of line. The endeavour of the Tribunal which acts as a quasi judicial authority to arrive at findings in a summary enquiry cannot be fettered by strict rules of evidence and the Tribunal in having arrived at its findings has not committed any irregularity which is to the prejudice of the petitioners. Hence, the findings of the Tribunal cannot be disturbed on a question of fact.

6. It is contended that in so far as the contention that the respondent No. 2, Subbegowda, could not claim as a tenant, in the face of the circumstance that he was claiming as a tenant under a mortgagee in possession and therefore, Section 4 of the Act would be a bar to such a claim is also not tenable. Though Section 4 excludes mortgagee in possession to claim as a tenant, the circumstance that a mortgagee in possession may have inducted a tenant and such a tenant can claim occupancy tights. Reliance in this regard is placed on the decision of the Supreme Court in the case of Dahya Lala and Ors. v. Rasul Mahomed Abdul Rahim and Ors. : [1963]3SCR1 , which was a case decided under the Bombay Tenancy and Agricultural Lands Act. Where a mortgagee in possession had inducted a tenant and the mortgagor having instituted proceedings under the Bombay Agricultural Debtor's Relief Act 28 of 1947 and the mortgagor having succeeded in obtaining an order for possession of the land and having sought to eject the tenant, the dispute ultimately was before the Supreme Court. On the question of the claim for tenancy it was follows:

Under the Transfer of Property Act, the right of a tenant who has been inducted by a mortgagee in possession ordinarily comes to an end with the extinction of the mortgage by redemption, but that rule, in our judgment, has no application in the interpretation of a statute which has been enacted with the object of granting protection to persons lawfully cultivating agricultural lands. Nor has the contention that the expression 'mortgagee in possession' includes a tenant from such a mortgagee any force. A mortgagee in possession is excluded from the class of deemed tenants on grounds of public policy: to confer that status upon a mortgagee in possession would be to invest him with rights inconsistent with his fiduciary character. A transferee of the totality of the rights of a mortgagee in possession may also be deemed to be a mortgagee in possession. But a tenant of the mortgagee in possession if inducted on the land in the ordinary course of management under authority derived from the mortgagor and so long as the mortgage subsists, even under the ordinary law he is not liable to be evicted by the mortgagor. It appears that the Legislature by restricting the exclusion to mortgagees in possession from the class of deemed tenants intended that the tenant lawfully inducted by the mortgagee shall on redemption of the mortgage be deemed to be tenant of the mortgagor. In our view, therefore, the High Court was right in holding that the respondent was entitled to claim the protection of the Bombay Tenancy and Agricultural Lands Act, 1948 as a deemed tenant.

The Counsel would submit that the ratio of the said judgement would apply on all fours to the present case and it cannot be said that Subbegowda cannot claim as a tenant under a mortgagee in possession.

7. Having regard to the above rival contentions, while it may be true that once the order of the Tribunal was set aside by this Court in writ petition in W.P. No. 3582/1977, the Tribunal could not place reliance on the statements made in the earlier proceedings, the fact remains that there were revenue entries to indicate that Subbegowda was a cultivator in possession, consistently for several years. This has not been challenged or set at naught. The mere assertion that they are incorrect and false entries, would not enable the petitioners to dislodge the claim of tenancy. Hence the finding of fact by the Tribunal was fortified by this circumstance, apart from the statement of K.S. Subba Rao made earlier. Hence, the primary contention that the Tribunal has committed a gross error, which goes to the root of the matter, cannot be sustained.

8. In so far as the contention that Subbegowda cannot claim as a tenant under a mortgagee in possession is concerned the judgement of the Supreme Court cited by the Counsel for the respondents 2(a) and 2(b) would clearly indicate that tenancy can be created during the subsistence of a mortgage. In the present case on hand, the mortgage not having been redeemed, the mortgagee in possession would be in a position to confer such tenancy, during its subsistence. In the instant case, there being material to indicate that Subbegowda was inducted welt before 1974, by applying the ratio of the judgement of the Supreme Court above referred, the claim for tenancy could be sustained. Accordingly, the petitioners, in my opinion, have not made out any case for interference. The petition stands dismissed.

9. The office is directed to show the name of Shri A. Ravishankar along with Shri N.S. Sanjay Gowda for Respondents 2(a) and 2(b).


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