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1977 DIGILAW 8 (KAR)

PUPPEGOWDA v. GOWRAMMA

1977-01-21

BHEMIAH

body1977
( 1 ) THESE two writ petitions arise out of an order passed by the Land tribunal, Belur. They are heard together and disposed of by a common order. ( 2 ) WP. 3926 of 1976 is by the tenant and WP. 4095 of 1976 is by the land owner In these two writ petitions the petitioners have challenged the order of the Land Tribunal, Belur. rejecting the claim of the tenant to grant occupancy rights and for taking action as contemplated under sub- sec (2) of S. 44 of the Karnataka Land Reforms Act, 1961 (to be hereinafter called the Act ). The tenant filed an application for grant of occupancy rights in respect of Sy. No. 16 measuring 2 acres and 30 guntas Mattigatta village in Belur taluk. The land owner resisted the claim on the ground that the land was not tenanted and that he has been cultivating the land from 1956 as owner. The contention of the learned Advocate for the tenant is that* the land was given on a gutta karar for five years from 30-1-1950 to 29-1-1955 and after the expiry of the lease period he continued to cultivate the land. The case of the owner is that after the expiry of the period of lease the tenant surrendered the land and that he has been cultivating the land from the year 1956. ( 3 ) THE Tribunal upon consideration of the evidence produced by the tenant and also in view of the entries in pahanis from the year 1964 to 1975 found that the tenant was not cultivating the land on the date of vesting viz, on 1-3-1974, and in that view of the matter reiected the claim of the tenant for grant of occupancy rights. Further the Tribunal upon consideration of the gutta chit found that it was a tenanted land and, therefore, the land vested in the Govt on the date of vesting and action was called for as contemplated under sub-sec (2) of S. 44 of the Act. ( 4 ) THESE findings are challenged before this Court. Mr. Chandrashekhar. " learned Advocate for the tenant mainly contended that the Tribunal having found that the land was tenanted is in error in not holding that the petir tioner in WP. 3926 of 1976 was the tenant of the land. ( 4 ) THESE findings are challenged before this Court. Mr. Chandrashekhar. " learned Advocate for the tenant mainly contended that the Tribunal having found that the land was tenanted is in error in not holding that the petir tioner in WP. 3926 of 1976 was the tenant of the land. He further urged that the Tribunal's order is vitiated since no finding has been given as to when the tenant was dispossessed. On the other hand, the learned advocate for the land owner contended that the Tribunal's order that the land was tenanted is based upon no evidence and, therefore, its conclusion that the land vested in the Government is erroneous and hence the Tribunal had no jurisdiction to impose on the owner the consequences that flow from the provisions of sub-sec (2) of S. 44 of the Act. ( 5 ) IT is not disputed that the land was leased to the tenant by the owner in the year 1950 for a period of five years and that was over on 29-1-1955. The owner's case was rejected by the Tribunal on the ground that the surrender alleged by the land owner was not before the competent authority in writing and such surrender was not duly accepted. The Tribunal has committed an error of law in giving such a finding which is contrary to the provisions of the proviso to sub-sec (2) of S. 5 of the Mysore Tenancy act, 1952 (to be hereinafter called as Tenancy Act' ). ( 6 ) SECTION 5 (2) of the Tenancy Act, reads thus :" Notwithstanding any agreement, usage or law to the contrary, no tenancy shall be terminated before the expiry of a period of five years except on the grounds mentioned in Section 15 : provided that with the consent of the landlord any tenancy may be terminated by a tenant before the expiry of a period of five years by surrendering his interest as a tenant in favour of the landlord. "assuming the tenancy created in the year 1950 continued after 19-1-55 it could be terminated by consent as per the proviso quoted above before the expiry of a period of five years by surrendering tenant's interest in favour of the landlord. The case of the land owner is that after the expiry of the period of lease, he has been cultivating the land in question. The case of the land owner is that after the expiry of the period of lease, he has been cultivating the land in question. He has deposed to this effect in the course of his statement. The tenant has merely asserted that he has been cultivating even after the expiry of the lease period in the year 1955. But the stand taken by him is neither supported by oral nor by documentary evidence. The Tribunal has rightly disbelieved the evidence of the three witnesses examined on behalf of the tenant on the ground of either interestedness or that they were not neighbouring landholders. The Tribunal has also relied upon the pahani copies from the year 1964 onwards. The tenant has not produced any revenue records to show that from the year 1955 till 1974 that he was cultivating the land as a tenant and, therefore, the Tribunal was right in reaching the conclusion that the tenant has not proved his case that he was cultivating the land as tenant immediately before the date of vesting. If the alleged tenant was not cultivating the land, it was the duty of the Tribunal to determine as to who was cultivating the land. The Tribunal has failed to do it. ( 7 ) THE Tribunal has ignored the pahani copies produced by the owner from the year 1964 to prove that he was cultivating the land and hi? name was entered in the pahani records. The Tribunal has thus ignored the material evidence to reach the conclusion that the owner was in possession and cultivating the land prior to the date of vesting. When the tenant has failed to establish that he was cultivating the land on lease immediately prior to 1-3-1974 and when the owner has established that he was cultivating the land, the conclusion reached by the Tribunal that the land came to be vested in the Govt is contrary to law. The finding of the Tribunal on the question of vesting is contrary to the decision of the Division bench of this Court in Rayappa Basappa v. Land Tribunal, (1976) 1 Karlj, 319. The finding of the Tribunal on the question of vesting is contrary to the decision of the Division bench of this Court in Rayappa Basappa v. Land Tribunal, (1976) 1 Karlj, 319. wherein it is laid down that where the alleged tenant has not been in possession of the agricultural land and he has not been cultivating it personally immediately prior to 1-3-1974 such land does not vest in the State Govt under s. 44 of the Act, and if it does not vest in the State Govt, the tenant is not entitled to be registered as occupant. ( 8 ) NO doubt the Tribunal has referred to this judgment in the course of its order. But, it appears to have misunderstood the ratio of the decision. Therefore, the decision of the Tribunal that the land vested in the State govt and that the consequences under sub-sec (2) of Sec. 44 of the Act, should follow is vitiated. ( 9 ) THE contention of Mr. Chandrashekar that failure to determine the date on which the tenant was dispossessed has vitiated the impugned order cannot be accepted as correct. Under the Act, the Tribunal is required to determine whether the person is a tenant or not and whether the land is an agricultural land or not immediately prior to 1-3-1974. The Tribunal was not called upon to determine the question as to when the tenant was dispossessed. It is on this ground Mr. Chandrashekar, wanted this case to be remanded for fresh disposal in accordance with law. Remanding of the proceeding is not called for, in view of the fact that the tenant has failed to prove his tenancy in respect of the land and also in view of the fact that there is overwhelming evidence to show that the owner has been cultivating the land from 1956 upto the date of vesting after the lease period under the gutta karar was over. Remanding ot the case results in waste of public time and money. Therefore, WP. 3926 of 1976 filed by the tenant must fail and WP. 4095 of 1976 filed by the owner must succeed. Remanding ot the case results in waste of public time and money. Therefore, WP. 3926 of 1976 filed by the tenant must fail and WP. 4095 of 1976 filed by the owner must succeed. In the result, the order of the Land Tribunal in rejecting the claim of the tenant for registration of occupancy rights is upheld and that the order directing the consequences to follow under sub-sec (2) of S. 44 of the Act is set aside, and WP. 4095 of 1976 allowed and WP. 3926 of 1976 is dismissed. No costs. --- *** --- .