Dundappa Ramappa and Others vs The Land Tribunal, Gokak and Others

Aravind Kumar, J.—Petitioners who claim to be tenants in respect of Sy. No. 381 of Mudalagi Village, Gokak Taluk sought for grant of occupancy rights before Land Tribunal and are questioning the order passed by the Land Tribunal, Gokak dated 30.10.2002, Annexure-A whereunder first respondent Land Tribunal rejected their claim. Land Tribunal after an order of remand came to be passed by this Court in W.P. 12982/81 by order dated 08.11.2000 rejected the applications filed by the petitioners and granted occupancy rights in favour of respondent No. 3- deceased Sri. Bando Srinivas Desai and respondent No. 4-deceased Sri. Ramachandra Srinivas Desai as tenants of above said agricultural land measuring 9 acres 5 guntas.

This court on the earlier occasion when respondent No. 3 Sri. Bando Srinivas Desai had come up before this court calling in question order dated 09.03.81 passed by Land Tribunal whereunder it had granted occupancy rights in favour of petitioners 1, 2, 3 had remanded the matter back to the tribunal after considering rival contentions. Order passed by the Coordinate Bench of this court in W.P. 12982/81 reads as under:

"5. After perusing the records, I find that the matter deserves to be remitted back to consider various points raised by the petitioner. The question is whether the subtenant is entitled to for the benefit of the Act either under Bombay Tenancy and Agricultural Act or under Karnataka Land Reforms Act has not been clearly considered by the Tribunal and that itself is sufficient to set aside the impugned order and remit back to the Tribunal. I find that the points raised by the petitioner has not been considered by the Tribunal.

In this view, granting one more opportunity to all the parties to produce all documents and establish their respective claim and leaving all the contentions open, the impugned order is set aside and the matter is remitted back to the Tribunal for fresh disposal according to law.

Accordingly, this writ petition is allowed so far as it relates to Sy. No. 381".

The above order of remand passed by this court undisputedly had reached finality since there was no challenge to the said order. As such Tribunal after issuing notice to the parties and after recording further evidence of parties, by order dated 30.10.2002 rejected the claim of the petitioners and accepted the plea of original claimants namely Sri. Bando Srinivas Desai and his brother Sri. Ramachandra Srinivas Desai and granted occupancy rights in their favour which is under challenge in these writ petitions.

The contention of Sri. R.M. Kulkarni, learned counsel appearing for petitioners are as under:

(i) Tribunal has not understood the order of remand in proper perspective.

(ii) Order of remand passed by this court would indicate that Tribunal ought to have considered whether sub-tenant is entitled for the benefit of grant of occupancy rights either under the Bombay Tenancy and Agricultural Act or under the Karnataka Land Reforms Act and this exercise was not undertaken by the Tribunal.

(iii) Even otherwise on the available material before tribunal which was voluminous in nature it indicated that Sri. Srinivas Muthalik Desai namely father of deceased respondents 3 and 4 was a permanent tenant and he had sub-let the said land to one Sri. Satyeppa Basappa Muniyal on 28.05.1945 for a period of five years and on lease coming to an end on 10.04.1950 the name of Sri. Srinivas Muthalik Desai was entered in the revenue records and the entire records indicated that the said Sri. Srinivas Muthalik Desai was a permanent tenant of the land in question and as such the embargo placed under section 21 for creating sub-lease is not attracted to the facts and circumstances of the case and he would also draw the attention of the court to the evidence of deceased Bando Srinivas Desai dated 18.12.1980 whereunder he has admitted that Sri. Dundappa Ramappa Kankanawadi first petitioner was cultivating the land in question in the year 1965 and was paying the deceased Sri. Srinivas Muthalik Desai rent by way of share in the crops namely to an extent of half share and he would elaborate his submission in this regard by contending that there is non consideration of material evidence available on record and as such it has resulted in an erroneous order being passed by the Tribunal and as such he prays for quashing of the order of Land Tribunal. In the alternate he prays for matter being remanded to Land Tribunal for consideration afresh in the light of tribunal having not examined the issue regarding sub-lease and the right of a permanent tenant to create sub-lease.

(iv) He would further draw the attention of the court to Annexure-K-1 which is a record of right relating to 1952-53 pertaining to Land in question which indicates that first petitioner was cultivating the land in question by giving half share in the crops harvested to the permanent tenant- Sri. Srinivas Muthalik Desai and contends non consideration of this material evidence by Land Tribunal has vitiated the order and there has been non consideration of material evidence and also non appreciation of available evidence on record.

On these grounds he seeks for setting aside the order passed by the Tribunal.

Per contra, Sri. Anand Kumar, learned counsel appearing on behalf of respondents 3 and 4 would support the order passed by Land Tribunal and contends that Land Tribunal has rightly taken note of the fact that as on appointed date there was no entry in the revenue records reflecting the names of petitioners and as such it has rightly rejected the claim of the petitioners and there is no error committed by the Tribunal and even otherwise he would submit that petitioners when admittedly are claiming right to the property in question as a sub-tenant and there being an embargo under section 21 of the Karnataka Land Reforms Act, 1961 to create sub-lease right of the petitioners even if any would get extinguished by virtue of statutory bar. Hence, he would submit that there is no merit in the writ petition and prays for dismissal of the same.

Sri. Ravi V. Hosamani, learned Additional Government Advocate appearing on behalf of respondents 1 and 2 would support the order passed by the Land Tribunal and by making available the original records he would submit that Land Tribunal after the order of remand came to be passed by this court on 08.11.2000 in W.P. 12982/81 though was required to consider the issue regarding sub-tenancy, for reasons best known has not examined said issue and if for any reason this court were to come to a conclusion that said issue requires to be re-agitated or reconsidered by tribunal this court may remand the matter back to the Tribunal for consideration of this issue afresh in the light of direction issued by this court and as such he prays for suitable orders being passed by taking into consideration the original records.

Having heard the learned advocates appearing for the parties and on perusal of the impugned order and records and after bestowing my careful and anxious consideration to the rival contentions raised by respective learned advocates it would emerge from the records that it is a second round of litigation and the parties to this lis have been litigating for past 60 years. Though the order passed by Co-ordinate Bench of this court on 08.11.2000 in W.P. 12982/81 directing the land tribunal to examine the question as to whether sub-tenant is entitled for the benefit of the Act i.e., either under Bombay Tenancy and Agricultural Act or under the Karnataka Land Reforms Act, 1961 same has not been examined at all by the Land Tribunal and this would be a sufficient ground for this court to set aside the order of Land Tribunal and remand the matter back to the tribunal for consideration afresh. However, this court would deem it just and proper to examine the case on merits also in view of the fact that entire evidence is available on record and issue regarding sub-tenancy and right of permanent tenant to create sub-lease being a question of law since remanding the matter back to the tribunal would only be a ritual. As such, I desist from remanding the matter back to the tribunal and matter is being disposed of on merits.

Undisputedly five (5) Form No. 7 applications came to be filed by the following persons on the following dates. Extent of land claimed by each of the applicants and details thereof are tabulated herein below for the purpose of convenience.

Record of the Tribunal made available by the learned Government Advocate indicate that one Sri. Allappa Payappa Desai was the owner of the land in question. Undisputedly Sri. Srinivas Muthalik Desai had taken the said land amongst other lands on lease from the said Sri. Allappa Payappa Desai about 200 years prior to the appointed date. It is also not in dispute that said Sri. Srinivas Muthalik Desai had sublet the land in question to Sri. Satyeppa Basappa Munyal for a period of five years commencing from 28.05.1945 and said lease came to an end on 10.04.1950. It is thereafter name of Sri. Srinivas Muthalik Desai came to be entered in the revenue records.

On the one hand the petitioners Sriyuths Dundappa Ramappa Kankanawadi, Ramappa Dundappa Kankanawadi, Kallappa Ramappa Kankanawadi and Holeppa Parappa Terdal @ Shivapoor namely petitioners 1, 1(a), 2 and 3 claim to be tenants from the year 1950. Whereas the permanent tenant Sri. Srinivas Muthalik Desai contended that none of these persons are tenants under him and they were working as coolies and as such they were not entitled for being registered as tenants of the lands in question. The Record of Rights of five years from 1952-53 would clearly indicate that one Sri. Dundappa Ramappa Kankanawadi namely first petitioner had obtained the property in question on sub-lease by oral agreement from Sri. Srinivas Muthalik Desai as evidenced from Annexure-K-1. On perusal of the said annexure it would clearly indicate that it was agreed to between the parties that tenant had to part with half share of the crops as rent to Sri. Srinivas Muthalik Desai. When this documentary evidence available on record is read in conjunction with evidence of Sri. Srinivas Muthalik Desai''s son namely deceased Sri. Bando Srinivas Desai who had been examined before the Land Tribunal on 18.12.1980, it would not detain this court for too long to reject the contention of rival claimants namely claim of respondents 3 and 4 herein, since petitioners were tenants of the property in question and cultivating the lands in question. It is clearly admitted in his evidence namely in his examination-in-chief itself that in the year 1965 itself the name of deceased Sri. Dundappa Ramappa Kankanawadi had been entered in the revenue records. Infact he goes to the extent of saying that in the said land which was being cultivated by Sri. Dundappa Ramappa Kankanawadi he had to part with 50% of share in the crop and on account of non payment of said rent namely half share in the crop he was perforced to file a suit for perpetual injunction against not only Sri. Dundappa Ramappa Kankanawadi but also against his brothers and was successful in obtaining an ex parte order of temporary injunction on 09.02.1965 as could be seen from Annexure-G. However, when the matter came to be contested by the defendants therein namely above said Sri. Dundappa Ramappa Kankanawadi and others by producing material evidence before the competent Civil Court to contend that they have been in possession of the land in question, it was found by Civil Court after examining such claim that deceased Sri. Srinivas Muthalik Desai was not in possession and enjoyment of the said land but on the other hand as on the date of filing of the suit said Sri. Dundappa Ramappa Kankanawadi and his family members were in possession and enjoyment of the property in question. As such it dissolved the order of temporary injunction. These two facts would clearly indicate that Sri. Srinivas Muthalik Desai had created sub-lease in respect of the land in question in favour of Sri. Dundappa Ramappa Kankanawadi and the said person along with his family members were in possession and enjoyment of the same.

Now turning my attention as to whether said tenant Sri. Srinivas Muthalik Desai was a permanent tenant and whether he was entitled to create a sublease when examined in the background of statutory provisions namely Sections 5, 21 and 49 of the Karnataka Land Reforms Act it would emerge that word `tenant'' has been defined under section 2(34) of the Act to include a person who is a permanent tenant apart from other persons as defined thereunder. Section 5 prohibits creation of lease after the date of commencement of Amended Act namely Act 1 of 1974 or continuation of such lease on the commencement of Amended Act. Section 21 prohibits sub-letting of any land held by a tenant and proviso to sub-section (1) would indicate that prohibition created under sub-section (1) would not affect the rights if any of a permanent tenant or in other words sub-tenancy created by a permanent tenant would not extinguish such right of sub-tenant and section 49 recognizes the right of a sub-tenant to be registered as an occupant, where the tenant has lawfully sub-let the land. Division Bench of this court in the case of Chikkanna Bin Rajegowda (since deceased by LRs. Smt. Ningamma and Others) Vs. State of Karnataka and Others, (2010) ILR (Kar) 3901 : (2010) 6 KarLJ 515 : (2010) 3 KCCR 2321 has held that a person claiming occupancy right on the ground of being a sub-tenant can succeed only if he is able to demonstrate that subletting in his favour was prior to 02.10.1965 and if the sub-tenant were to acquire any right after coming into force Section 21 of the Act, sub-tenancy so created subsequent to 02.10.1965 would be hit by Section 21. It has been held by the Division Bench as under:

"10. It is thus clear from the provision contained in Section 21 that, a bar is enacted for sub-letting the land held by any tenant except by a permanent tenant. The proviso and the succeeding sub-sections save assignment by way of partition and by certain other categories of tenants like a soldier, seaman or in respect of certain transactions of loan or mortgage executed in favour of State Government or some Companies or Cooperative societies. Section 21 is in the statue book and has come into force with effect from 02.10.1965. Therefore, it is clear that, the prohibition for sub-letting the land is in existence since 02.10.1965. If that be so, unless it is established that the predecessor-in-title of the writ petitioners were permanent tenants of the lands in question, they could not have sub-let the lands after 02.10.1965. The facts as pleaded do not make the proviso to sub-section (1) of Section 21 applicable to the present case. However, no opinion need be expressed in this regard at this stage. It has to be therefore, noted that if sub-tenancy is created after 02.10.1965, it cannot be regarded as lawful in view of the prohibition enacted under Section 21.

Section 4 of the Act which deals with deemed tenants will also not take in its fold a sub-tenant who is inducted contrary to Section 21.

In the case of TIMMAKKA KOM VENKANNA NAIK VS. THE LAND TRIBUNAL AND OTHERS (Supra) on which reliance is placed by the appellants, the provisions contained under Section 21(1) of the Act came up for consideration. The question that arose was whether a tenant could bequeath his right of tenancy in favour of a third party under a Will. This Court having considered the effect of Section 45 and Section 21(1) of the Act has held in paragraph 12 that a tenant cannot assign his rights in the land to any other person in view of the bar enacted under Section 21 for subdivision or subletting of the land held by him. It is held that the bar cannot be overcome by a tenant even by creating a Will because what he cannot do during his lifetime cannot be held to be capable of being done immediately after his death. Likewise, in the case of SANGAPPA KALYANAPPA BANGI (DEAD) THROUGH LRS. VS. LAND TRIBUNAL, JAMKHANDI AND OTHERS (Supra) explaining the effect of Section 21 of the Act, the Apex Court held that the assignment of any interest in the tenanted land by a tenant even by way of bequest under a Will cannot be held to be valid. In the case of BEERA AAYU AGERA VS. LAND TRIBUNAL, ANKOLA AND OTHERS (Supra) learned Single Judge of this Court has held that under Section 45(1) of the Act a person claiming occupancy on the ground of being a sub-tenant can succeed only if he is able to show that the sub-letting in his favour was prior to 02.10.1965. It is further held that if the sub-tenancy rights were acquired after the coming into force of the provisions of the Act, the said sub-tenancy was hit by the provisions of Section 21 which prohibited subletting. In our view, the proposition of law regarding the prohibition of sub-lease as enacted under Section 21(1) with effect from 02.10.1965 is rightly laid down in this decision."

In the light of law laid down by Division Bench and in the background of statutory provisions noticed herein above when the facts on hand are examined undisputedly sub-tenancy was created by Sri. Srinivas Muthalik Desai way back in the year 1952-53 i.e., prior to 02.10.1965 as already indicated herein above and as such the embargo placed under section 21 cannot be held to be attracted to the facts of the present case. In that view of the matter contention of Sri. Anand Kumar, learned counsel appearing for respondents 3(a) to 3(g) and 4 that sub-tenancy could not have been created or such sub-tenants cannot be granted occupancy rights cannot be accepted and it stands rejected.

It is further noticed that respondents 3 and 4 namely deceased Sri. Bando Srinivas Desai and Sri. Ramachandra Srinivas Desai as also their legal heirs have not been able to demonstrate before tribunal about their names finding a place in the Revenue records on the appointed date namely 01.03.1974. Records secured from the Tribunal as also Annexure-Q which relates to the entries made in respect of various lands in Mudalagi Village would clearly indicate that in respect of Sy. No. 381 an extent of 1 acre 13 guntas, 2 acres 26 guntas and 4 acres 23 guntas are standing in the name of Sri. Dundappa Ramappa Kankanawadi (first petitioner), Sri. Kallappa Ramappa Kankanawadi (second petitioner) and Sri. Holeppa Parappa Terdal @ Shivapoor (third petitioner). Said entry relates to the date of vesting of land in the State. It would also indicate that names of all the persons who are in actual cultivation and who are in possession and enjoyment of the property, together the extent of area in occupation of respective applicants is reflected. This is yet another factor which would sway in favour of petitioners to arrive at a conclusion that on the appointed date they were cultivating the lands in question as tenants and were entitled to be registered as occupants. Even Record of Rights from the year 1965 onwards would clearly indicate the names of the above said persons was being reflected in the revenue records and this aspect has been completely lost sight of by the tribunal and there has been complete non application of mind in this regard by the tribunal and there is also non appreciation of available material evidence on record and in a perfunctory manner tribunal has proceeded to pass the order impugned in the present writ petition and as such for these myriad reasons discussed herein above impugned order cannot be sustained.

Hence, I proceed to pass the following:

ORDER

Writ petition is hereby allowed.

Order passed by the Land Tribunal, Gokak dated 30.10.2002, Annexure-A is hereby quashed.

First Respondent Land Tribunal is hereby directed to grant occupancy rights in favour of petitioners in respect of the lands claimed by them for grant of occupancy rights and as claimed in Form No. 7 filed by deceased applicants namely Sri. Dundappa Ramappa Kankanawadi, Sri. Kallappa Ramappa Kankanawadi and Sri. Holeppa Parappa Terdal @ Shivapoor forthwith.

Respondent No. 1 is hereby directed to issue Form No. 10 in favour of petitioners by granting occupancy rights in their favour as ordered herein above.

Costs made easy.