Research › Browse › Judgment

Karnataka High Court · body

1976 DIGILAW 13 (KAR)

K. K. BASAFPA v. LAND TRIBUNAL SOMWARPET

1976-01-16

VENKATACHALAIAH

body1976
( 1 ) THE petitioners in the above writ petition have questioned the correctness of the order passed by the Land Tribunal, Somwarpet, on 20-10-1975 declar ng that respondent 2 was a tenant in occupation of the land bearing sy No 491 mersuring 3 acres in Kibbetta village of Somwarpet and was therefore entitled to Le registered as its occupant. ( 2 ) THE 1st petitioner was the owner of the land in question. He mortgaged it with possession in favour of a certain Manual Lobo in the year 1968 and the moitgagee got into possession of the same under the said transaction. Thererfter the mortgagee leased out the land in favour of respondent 2. Since the lease granted in his favour had not been duly terminated till 1-3-1974, he appled to the Land Tribunal, Somwarpet, to register him as the occupant of the land under S. 45 of the Karnataka Land Reforms Act. The Land Tribunal considered the statements made by the parties be fore it and the documents prcduced by them and came to the conclusion that the 2nd respondent was entitled to be registered as the occupant of the land in question. Hence this petition. ( 3 ) IT is not disputed by the petitioners that Manual Lobo was put in possesion of the land as a mortgagee in possession. The 2nd respondent produced before the Tribunal certan documents executed by Manual Lobo shoving that he was cultivating the land as a tenant under Manual Lobo end was paying rent to him. The total-extent of the land bearing Sy No. 49 as can be seen from the extract of the pahani produced by the 2nd respondent before the Tribunal is 9 acres 46 cents. The name of the 2nd respondent is shewn in the cultivator's column against 3 acres, out of the total evtent of 9 acres 46 cents, in the pahani extracts for the years 1971-72, 72-73 and 73-74. The 2nd respondent has also produced a notice of demand served on h'm by the Revenue Inspector, Somwarpet on 13-4-1973 calling rprn him to supply a certain quantity of paddy which he had grown. From the foregoing it becomes "evident that respondent 2 was in possession of on extent cf 3 acres of land in Sy. No. 49 during the years 1971-72 to 73-74. From the foregoing it becomes "evident that respondent 2 was in possession of on extent cf 3 acres of land in Sy. No. 49 during the years 1971-72 to 73-74. His possession during these years can only be traced to the possession which he got as a lessee under Manuel Lobo, the mortgagee in possession. ( 4 ) IT is no doubt true that. the- 1st petitioner has executed another usufructuary mortgage in favour the 2nd petitioner subsequently. There was however no evidence before the Tribunal showing. that the 2nd respondent had in fact been disposssessed after the termination of lease created in his favour by Manual Lobo the 1st mortgagee in possession. ( 5 ) IT was argued by Sri Gouri Shankarv learned Counsel for the petitioners, that the lease having not been created by the 1st petitioner, it could not be relied upon by the 2nd respondent in support of his case that he was a tenant in occupation of the land on the relevant date. In other words, he contended that the said lease was not binding on the 1st petitioner. The possession of a tenant under a lease created by a mortgagee with possession in the ordinary course of management vis-a-vis the mortgagor after the redemption of the mortgage, was considered by the Supreme court in Dahya Lola v. Rasul Mahomed, AIR. 1964 SC. 1320. in a case arising under the bombay Tenancy and Agricultural Lands Act. In that Act also there was a provision corresponding to S. 4 of the Karnataka Land Reforms Act which declared that a person who was lawfully cultivating the land belonging to another person could be a 'deemed tenant' when such person was not a person falling under any of the categories mentioned in CIs (a) to (c) of s. 4 of the Karnataka Land Reforms Act. The Supreme Court held that a person who was inducted into possession under a lease created by a mortgagee in possession during the period of mortgage in the ordinary course of management, would be a 'deemed tenant' in respect of the land in question and he could assert his rights as a deemed tenant against the mortgagor after the redemption. The Supreme Court held that a person who was inducted into possession under a lease created by a mortgagee in possession during the period of mortgage in the ordinary course of management, would be a 'deemed tenant' in respect of the land in question and he could assert his rights as a deemed tenant against the mortgagor after the redemption. The relevant part of the said decision reads as follows :" The point in controversy is whether a person claiming the status of a deemed tenant must have been cultivating land with the conent or under the authority of the owner. Counsel for the appellants submits that tenancy postulates a relation based on contract between the owner of land and the person in occupation of the land, and there can be no tenancy without the consent or authority of the owner to the occupation of that land. But the Act has by S. 2 (18) devised a special definition of tenant and included therein persons who are not contractual tenants. It would therefore be difficult to sssume in construing s. 4 that the person who claims the status of a deemed tenant must be cultivating land with the consent or authority of the owner. The relevant condition imposed by the statute is only that the person claiming the status of a deemed tenant must be cultivating land 'lawfully': It is not the condition that he must cultivate land with the consent of or under authority derived directly from the owner. To import such a condition is to rewrite the section, and destroy its practical utility. " ( 6 ) A person who derives his right to cultivate land from the owners would normally be a contractual tenant and he will obviously not be a 'deemed tenant'. Persons such as licencees from the owner may certainly be regarded as falling within the class of persons lawfully cultivating land belonging to others, but it cannot be assumed there from that they are the only persons who are covered by the section. Persons such as licencees from the owner may certainly be regarded as falling within the class of persons lawfully cultivating land belonging to others, but it cannot be assumed there from that they are the only persons who are covered by the section. The Act affords protection to all persons who hold agricultural lands as contractual tenants and subject to the exceptions specified all persons lawfully cultivating lands" belonging to othersand it would be unduly restricting the intention of the Legislature to limit the benefit of its provisions to persons who derive their Authority from the owner, either under a contract of tenancy, or other wise. In our view all persons other than those mefttioned in Cls (a), (b) and (c) of S. 4- who lawfully cultivate land belonging to other persons whether or not their authority is derived directly from the owner of tine land must be deemed tenants of the lands. ( 7 ) HAVING observed thus, the Supreme Court proceeded to observe as follows :" 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 is 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 ne 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. " ( 8 ) THE above view was followed by the Supreme Court in Prabhu v. Ramdeo, AIR. 1966 SC. 1721. which was a case arising under the provisions of the Rajasthan tenancy Act. " ( 8 ) THE above view was followed by the Supreme Court in Prabhu v. Ramdeo, AIR. 1966 SC. 1721. which was a case arising under the provisions of the Rajasthan tenancy Act. In view of the two decisions of the Supreme Court referred to above, the contrary view expressed by this Court in Shivalingappa veerabhadrdppa Heralgi v. Ramanna Narasappa, 1959 Myslj. 608. would be of no assistance to the petitioners. In Kempegowda. v. Puttaswamiah, 1964 1 Myslj 286. this Court has taken the same view. Since the finding recorded by the Tribunal is that the 2nd respondent got into possession of the land as a tenant under Manual Lobo, the mortgagee in possession, and since it is not shown that the said tenancy had been created outside the ordinary course of management of the land in question, it has to be held that the 2nd respondent who continued to be in possession of the land on 1-3-1974 as can be seen from the extracts of the pahani produced by him is entitled to claim the status of a 'deemed tenant' as against the 1st petitioner notwithstanding the fact that a second usufructuary mortgage, which had not the effect of dispossessing the 2nd respondent, had been created in 1972. ( 9 ) IN the circumstances, there is no ground to interfere with the order passed by the Tribunal. The petition is dismissed. --- *** --- .