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1978 DIGILAW 237 (KAR)

GOPAL RAO v. GOPAL RAO

1978-10-13

N.R.KUDOOR

body1978
( 1 ) THIS petition is one under Art. 226 of the Constitution directed against the order Ext. D dated 22-9-1975 passed by the 1st respondent-land tribunal, basavakalyan whereunder the tribunal rejected the claim of the petitioner Gopal Rao for registering him as an occupant in respect of the lands comprised in S. Nos. 55, measuring 13 acres 9 guntas, No. 54 measuring 7 acres and No. 45 measuring 3 acres 17 guntas of Betbalkunda village of Basavakalyan Taluk, of which the 2nd respondent Baliram is the owner.- ( 2 ) FEW facts relevant for the disposal of this Writ petition may be stated as under ; the petitioner Gopal Rao and the 2nd respondent Baliram were full brothers. Baliram was taken in adoption to the family of one Amrit Rao by his wife Smt. Bhagubai. Baliram owned vast extent of agricultural lands including the lands in question. As he could not cultivate the lands personally, he leased out the lands in question to the petitioner about 40 years ago. The petitioner has been cultivating the said lands as a tenant under Baliram. Consequent to the implementation of the Karnataka Land Reforms Act. 1961 (shortly called the Act) the petitioner submitted an application to the 1st respondent tribunal in form no. 7 as per Ext. B to register him as an occupant in respect of the lands in question. Baliram did not contest the application. The tribunal rejected the claim of the petitioner on the ground that Baliram and the petitioner are the co-parcenary brothers of a joint Hindu family and as such there exists no relationship of landlord and tenant between them. The petitioner has filed this writ petition requesting to quash the impugned order. ( 3 ) BOTH the respondents were served they are not represented in these proceedings. ( 4 ) SHRI Mohandas N. Hegde, learned Counsel for the petitioner has contended that the tribunal has not conducted a proper enquiry as envisaged under the provisions of the Act and the Rules framed thereunder. It has not correctly understood the various provisions of the Act relevant for the disposal of the question involved in the case. ( 4 ) SHRI Mohandas N. Hegde, learned Counsel for the petitioner has contended that the tribunal has not conducted a proper enquiry as envisaged under the provisions of the Act and the Rules framed thereunder. It has not correctly understood the various provisions of the Act relevant for the disposal of the question involved in the case. According to him, the tribunal has not considered the legal effect of the adoption of Baliram, the 2nd respondent, to the family of Amrit Rao by his wife Smt. Bhagubai while describing the petitioner and baliram as co-parcenary brothers of a joint Hindu family' He further contended that even if the adoption fails and the petitioner and Baliram continues to be the members of the original family, there is no prohibition under the Act to hold on lease by one brother unless they are the members of the ' family' within the meaning of the Act and the tenancy claimed is a deemed tenancy. ( 5 ) BEFORE adverting to the points raised by the learned Counsel for the petitioner, it will be useful to refer to the broad features of the scheme of the Act in the matter of conferment of ownership on the tenants. ( 6 ) CHAPTER III of the Act deals with conferment of ownership on tenants. S. 44 the opening Section of Chapter III deals with the vesting of the land in the state Government on and from the date of commencement of the Amendment Act no. 1 of 1974 which came into force on 1-3-1974. It provides that all lands held by or in the possession of tenants immediately prior to the date of commencement of the Amendment Act other than the lands held by them under leases permitted under S 5, shall, with effect on and from the said date, stand transferred to and vest in the state Government. S. 45 lays down the conditions for tenants being registered as occupants of the land vested in the State Government. S. 48-A deals with the enquiry by the tribunal, the applications filed by the tenants for conferment of occupancy right etc. Sub-section (1) provides for making an application by the person entitled to be registered as an occupant under s. 45 of the Act to the Tribunal within the time stipulated therein in the form prescribed. S. 48-A deals with the enquiry by the tribunal, the applications filed by the tenants for conferment of occupancy right etc. Sub-section (1) provides for making an application by the person entitled to be registered as an occupant under s. 45 of the Act to the Tribunal within the time stipulated therein in the form prescribed. Sub-section (2) deals with publication of the public notice in the village in which the land is situated and the issue of individual notices to the persons mentioned in the application and also to such others as may appear to the tribunal to be interested in the land. Sub-section (4) provides for the procedure to be followed where the claim is contested. It stipulates that where an objection is filed disputing the validity of the applicant's claim or setting up a rival claim, the tribunal shall hold an enquiry and-then determine the person entitled to be registered as an occupant and pass orders accordingly. ( 7 ) S. 112-B enumerates the powers of the Tribunal. One of the powers conferred on the tribunal is to decide whether a person is a tenant or not. 'tenant' is defined in clause (34) of sub-section (A) of S. 2 as follows:" Tenant' means an agriculturist who cultivates personally the land he holds on lease from a landlord and includes ;- (1) a person who is deemed to be a tenant under Section 4 ; (2) a person who was protected from eviction from any land by the mysore Tenants (Temporary Protection from Eviction) Act, 1961 ; (iii) a person who is a permanent tenant, and (iv) a person who is a protected tenant. Explanation: A person who takes up a contract to cut grass or to gather fruits or other produce of any land, shall not on that account only be deemed to be a tenant. "it is seen from the definition of ' tenant' that it includes a person who is deemed to be a tenant under S, 4. Explanation: A person who takes up a contract to cut grass or to gather fruits or other produce of any land, shall not on that account only be deemed to be a tenant. "it is seen from the definition of ' tenant' that it includes a person who is deemed to be a tenant under S, 4. S. 4 reads as follows: 4 Persons to be deemed tenants :-A person lawfully cultivating any land belonging to anothor person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not (a) a member of the owner's family, or it is seen from the above provision that a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner provided he is not a member of the owner's family. ' Family ' is defined under clause (12) of sub-subtion (A) of S. 2 thus :" Family " means.- (a) in the case of an individual, who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any; (b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters ; (c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and (d) Where an individual and his or her spouse are both dead, their minor sons and unmarried daughters; 'landlord ' is defined in clause (20) of sub-section (A) of S. 2 thus : "landlord" means a person who has leased land to a tenant and includes a person entitled to receive rent from a tenant. " (Note ; Explanation to the section is not relevant for our purpose ). ( 8 ) KEEPING in view these provisions, the contentions urged on behalf of the petitioner shall have to be considered. ( 9 ) THE simple question for consideration of the tribunal was whether the petitioner was a 'tenant' under Baliram in respect of the lands in question before the date of vesting and which he has been cultivating personally. ( 8 ) KEEPING in view these provisions, the contentions urged on behalf of the petitioner shall have to be considered. ( 9 ) THE simple question for consideration of the tribunal was whether the petitioner was a 'tenant' under Baliram in respect of the lands in question before the date of vesting and which he has been cultivating personally. The tribunal rejected the claim of the petitioner on the ground that he and Baliram are coparcenary brothers of a joint Hindu family and hence no relationship of land- lord and tenanet exists between them. The impugned order under which the claim of the petitioner was rejected reads thus :" The applicant Gopal Rao s/o Sham Rao and opponent Baliram s/o amruth Rao present. They state that they are co-parcenary brothers of a joint Hindu family. There is no tenancy existing between them regarding the lands Sy. No. 55, 54, 45 of Betbalkunda. Hence the matter is one of succession and partition. Therefore, the tribunal unanimously rejects the application. " ( 10 ) IF Baliram ceased to be the coparcener, of his original family, of which the petitioner continues to be so, by virtue of his adoption to the family of Amrut rao, a quite different family, then the impugned order based on the reasoning that the petitioner and Baliram are brother co-parceners of a joint Hindu family and so there was no tenancy existing between them and the matter between them is one of succession and partition cannot be held valid. This is more so especially in v iew of the fact that the petitioner does not lay any claim in respect of the lands in question under any other right other than the tenancy right under baliram on the plea that he, the petitioner, was holding the lands in question on lease from Baliram for the last 40 years. Even assuming that the petitioner's plea of adoption of Baliram to the family of mrut Rao fails and they continued to be the members of the original family, the question that arises for consideration will be whether there is any prohibition under the Act for the petitioner to hold the lands in question on lease from his brother. The case of the petitioner has to be considered in the light of the material provisions of the Act referred to above. The case of the petitioner has to be considered in the light of the material provisions of the Act referred to above. ( 11 ) FROM the definition of the word ' tenant' which is an inclusive definition, it is clear that the tenant means an agriculturist who cultivates personally the land he holds on lease from a landlord and includes a person who is deemed to be a tenant under S. 4 among other class of persons enumerated in the sub- clauses. Now coming to the word 'landlord", as could be seen from clause (20) of S. 2-A that the landlord means a person who has leased land to a tenant and includes a person entitled to receive rent from a tenant. Thus it is obvious from the above provisions that neither the ' tenant' nor the ' landlord ' is defined with reference to their personal relationship. It is only when we come to ' deemed tenant' as provided under S. 4 the question of personal relationship between the person claiming to be the deemed tenant and the owner of the land assumes importance. It is specifically provided therein that a person who claims to be a deemed tenant on the ground that he lawfully cultivates any land belonging to another person that the person so claiming shall not be a member of the owner's family. In this context, the definition of 'family ' as provided under the Act has to be noticed. A careful reading of the definition of ' family' provided under clause (12) of sub-section (A) of S 2 shows, that brothers who are majors will not constitute ' family ' within the meaning of the said clause. Thus, there will not be any prohibition for a brother claiming deemed tenancy under his another brother, because the former will not be the member of the latter's family within the meaning of clause (12) of sub-section (A) of S. 2 of the Act. Viewing the case from any angle, there is no prohibition for the petitioner to hold the lands belonging to his brother Baliram on lease on account of their personal relationship. Viewing the case from any angle, there is no prohibition for the petitioner to hold the lands belonging to his brother Baliram on lease on account of their personal relationship. The case of the petitioner would not fall within the prohibition of creating tenancies provided under S. 5 of the Act as it stood then because the petitioner has claimed his tenancy since 40 years, long before the coming into force of the act. 1 he tribunal, in my view, has committed a serious error in not considering the case of the petitioner that he and the 2nd respondent Baliram ceased to be the members of the joint family by virtue of Baliram's adoption before recording a finding that he and Baliram are brother coparceners of a joint Hindu family and as such no tenancy was e isting between them in respect of the lands in question and the matter between them is one of succession and partition. Further, the tribunal has also not considered the relevant provisions of the Act before passing the impugned order rejecting the claim of the petitioner, even assuming that they continued to be the members of the joint Hindu family. This has resulted in substantial failure of justice. ( 12 ) FOR the reasons stated above, the rule is made absolute, the impugned order dated 22-9-1975 Exhibit-D is hereby quashed and the matter is remitted to the 1st respondent-land tribunal for fresh disposal in accordance with law in the light of the observations contained in the body of this order after giving opportunity to both the parties to adduce evidence and to take all available contentions. There is no order as to costs. --- *** --- .