Basayya vs Land Tribunal, Hungund and Another

The petitioner, who owns lands Sy. Nos. 665 measuring 2 acres, 10 guntas and 676 measuring 13 acres, 4 guntas of Hungund, Taluka Hungund, has prayed that the order dated 18-5-1976 passed by the Land Tribunal, Hungund, in No. KLR. 11 SR. 27 conferring occupancy rights over these lands in favour of respondent-2, be quashed.

The undisputed facts may be narrated briefly though they are a little bit long-drawn. Respondent-2 had cultivated the lands as tenant even prior to the year 1956. The petitioner and respondent-2 were governed by the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the ''Bombay Act'') . The petitioners sent a registered notice terminating, respondent-2''s tenancy on 28-3-1955 stating that he required possession of the lands as he wanted to cultivate the same personally. This notice was pursuant to the provisions of Sec. 31(1)(a) of the Bombay Act. On the expiry of the period of one year, he filed an application before the Mamlatdar under Sec. 29 of the Bombay Act praying for possession. The matter ultimately reached this Court in CP. 444 of 1958 and was disposed of by a Division Bench of this Court on 8-9-1961. The claim of the petitioner-landlord was upheld as the Bench found that the notice given by the landlord was valid in law. It is, in my opinion, not necessary to state as to what had transpired at the intermediate stages. While allowing the said civil petition, the. Bench granted three months'' time to respondent-2 to reap the harvest of the crop standing on the lands. That three months'' time expired on 8-12-1961. Thereafter, the petitioner approached the Mamlatdar for possession of the lands and the Mamlatdar rejected the claim on the ground that the provisions of the Mysore Tenants (Temporary Protection from Eviction) Act, 1961 (Mysore Act 37 of 1961) (hereinafter referred to as ''the Temporary Protection Act'') came in the way of the petitioner-landlord. The petitioner then filed a suit for possession and the Munsiff, Hungund decreed the suit. As against that respondent-2 preferred an appeal to the District Court and the learned District Judge allowed the appeal and dismissed the suit of the petitioner. In the meanwhile, respondent-2 filed Form-7 claiming occupancy right over the said lands and the Land Tribunal has, pursuing the very reasons found available in the various orders passed in favour of respondent-2, granted the claim of respondent-2.

Sec. 44(1) of the Karnataka Land Reforms Act, 1961 (hereinafter-referred to as ''the Act'') lays down that lands tenanted as on 1-3-74 shall vest in the State Govt,. It also lays down that the 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, viz, Karnataka Act 1 of 1974, shall also vest in the State Govt, A plain reading of this provision shows that lands that are tenanted as on 1-3-74 vest in the Govt and the lands in possession of persons as on 1-3-74 against whom a decree or order for eviction or a certificate for resumption is made or issued immediately prior to the date of the commencement of the Amendment Act, viz, Act I of 1974, shall also vest in the Govt. A plain reading of this provision further shows that a decree or order for eviction or a certificate for resumption referred to therein must have been made or issued under the provisions of the Act as it stood prior to the amendment by Act 1 of 1974.

The word ''tenant'' used in Sec. 44(1) of the Act is defined in Section 2(34) of the Act. Only clauses(i) and (ii) of Sec. 2(34) are relevant. It is nobody''s case that respondent-2 was a ''deemed tenant'' under Sec. 4 of the Act. The case in favour of respondent-2 is that he was protected from eviction from the lands by the Temporary Protection Act. If Respt-2 was protected from eviction by the Temporary Protection Act, then he would be a tenant within the meaning of clause(ii) of Sec. 2(34) of the Act and, therefore, Sec. 44(1) of the Act would be applicable. If Sec. 44(1) of the Act becomes applicable, then quite naturally respondent-2 would be entitled to occupancy right over these lands in view of the undisputed fact that even prior to 1965 he was cultivating the lands as tenant under the petitioner.

Though the Act received the assent of the President on 5-3-1962, it came into force on 2-10-1986. Till then, various Acts were passed by the State Govt, to protect the interests of tenants in different areas of the State. The different areas of the State consisted of Bombay area, Hyderabad area, Madras area and Mysore area. Landlords and tenants of Bombay area were, as earlier pointed out, governed by the Bombay Act. in order to protect the interests of tenants of Bombay area the State Govt, passed the Bombay Tenancy (Suspension of Provisions and Amendment) Act, 1957 (Mysore Act 13 of 1957) (hereinafter referred to as ''the Suspension Act'') . By the suspension Act, the period of suspension was defined as "the period commencing on and from the second day of August 1956 and ending on the thirty-first day of Decr 1957". Sec. 5(b) (i) of the Suspension Act provided that notices given to tenants under Sec. 31 of the Bombay Act before the 11th day of March, 1957, shall not have any effect, and all applications made by landlords in pursuance of the provisions of the said section for possession of lands, shall, on the 11th March 1957, stand dismissed. This provision came up for consideration before a Division Bench of this Court in Shivaram Tammaji Kulkarni v. Shivappa Ganappa, 1960 MysLJ. 227. In view of the definition of ''period of suspension'' the Division Bench laid down that only notices issued on or after 1-8-56 and before 11-3-57 were affected by the provisions of Sec. 5(b) of the Suspension Act. It may be noted here itself, for the sake of completing the narration of facts that this protection given by the Suspension Act continued uptil 31st March 1966 in view of various amendments passed by the State Legislature, the last being Karnataka Act 6 of 1965. It has been already pointed out that the petitioner had sent a registered notice determining the tenancy of respondent-2. on 28-3-55, Therefore, it was much earlier to the period of suspension defined in the Suspension Act and as such it was excluded from the operation of Sec. 5(b) of the Suspension Act.

The Temporary Protection Act has defined ''tenant'' as follows in Section 2(e):

"Tenant means an agriculturist who holds land on lease from a landlord and includes an agriculturist, who is or is deemed to be a tenant under any law for the time being in force."

It was argued on behalf of the other side that this question has been gone into in S. Jayaram v. G. Mallikarjuniah, (1963) 2 MysLJ. 93 and it has been held after noting the definition of ''agriculturist'' in Sec. 2(a) of the Temporary Protection Act that ''tenant'' under the Temporary Protection Act would include within its fold tenants whose tenancies have been forfeited or have come to an end or have been determined and therefore though the tenancy of respondent-2 had been terminated by issue of a notice under Section 31(1) of the Bombay Act, he continued to be a tenant and as such Sec. 44(1) of the Act applied to the facts and circumstances of the case.

It has been already noted as to what is the definition of ''tenant'' in Sec. 2(a) of the. Temporary Protection Act. That shows that the word ''agriculturist'' has been incorporated in it. Sec. 2(a) of the Temporary Protection Act defines ''agriculturist'' to mean a person who cultivates land personally. I may, at the risk of repetition, state here that this definition has been taken into consideration in the decision in Jayamm''s case, (1963) 2 MysLJ. 93. The words ''to cultivate personally'' have been defined in Sec. 2(b) of the Temporary Protection Act. That definition has not been taken into consideration in the decision in Jayaram''s case, (1963) 2 MysLJ. 93. The definition runs as follows:

"''To cultivate personally'' means to cultivate land on one''s own account by one''s own labour or by the labour of any member of one''s family or............"

When the definition of ''agriculturist'' and the definition of ''to cultivate personally'' are taken together, and in my opinion it is necessary to take them into consideration together while understanding the definition of ''tenant'' found in Sec. 2(e) of the Temporary Protection Act, it would be seen that the crux lies in the words ''on ones own account'' found in the definition of ''to cultivate personally''. The words ''on one''s own account'' are not defined in the Temporary Protection Act or in the provisions of any other Acts referred to in the preceding paragraphs. Therefore, I am clearly of opinion that the ordinary dictionary meaning of these words should be taken into consideration. The ordinary dictionary meaning of the words ''on one''s own account'' is found in the Oxford English Dictionary as follows:

"for one''s own interest and at one''s own risk"

Therefore, it follows that respondent-2 ought to have cultivated the lands in question particularly after the period mentioned in CP. 444 of 1958 expired, i.e., from 8-12-1961, on his own account, to wit, in his own interest and at his own risk. But in CP. 444 of 1958 this Court held that the notice determining the tenancy of respondent-2 was valid and the same had legally determined the tenancy of respondent-2 and, therefore, respondent was liable to hand over possession to the petitioner. But, at the same time, the Division Bench granted three months'' time to respondent-2 to reap the harvest of the crops he had sown, as a matter of grace. These facts show that after the tenancy of respondent-2 came to be validly determined by the notice issued by the petitioner, he (respondent-2) continued to be in possession not as a tenant but as a trespasser. Cultivation by such a person cannot be, in law, within the dictionary meaning of the words ''on one''s own account''. It may be noted that respondent-2 became liable to pay mesne profits or damages, as the case might have been, to the petitioner as from 1-4-56 because he was in Unlawful cultivation of the said lands."

The reasons mentioned in the preceding paragraphs lead to an irresistible conclusion, viz, that respondent-2 could not be legally accommodated within the definition of ''tenant'' found in Sec. 2(e) of the Temporary Protection Act. In Jayaram''s case, (1963) 2 MysLJ. 93, the Court has observed, pertaining to this question, as follows:

"There is no evidence to show that defendants 1 to 5 are not agriculturists. Admittedly, at one time they were agriculturists. It is for the petitioner to prove that they had ceased to be agriculturists." It is because of this assumption that the Court concluded that the word ''tenant'' in Sec. 2(e) of the Temporary Protection Act included in its fold also a tenant whose tenancy had been determined. This reason shows that the ratio laid down in the aforementioned decision would not be aptly applicable to the facts and circumstances of this case.

The result of the discussion in the preceding paragraphs is that respondent-2 was not a tenant on the lands in question as on 1-3-74 though he was cultivating these lands. When that is so. the lands could not, in law, vest in the Govt. Hence, no question of conferring occupancy right on respondent-2 arises. The Tribunal had no jurisdiction to go into that aspect of the matter.

In view of the foregoing reasons, the impugned order found at Ext. C passed by the Land Tribunal cannot be sustained. Hence, the writ petition is allowed and the impugned order is quashed. No order as to costs.

Two weeks'' time is granted to Smt. Gowri, learned High Court Govt Pleader, to file a memo of appearance on behalf of respondent-1.