S. v. NANJUNDA BHATTA VS STATE OF KARNATAKA — 1979 DIGILAW 59 (KAR)

( 1 ) THIS writ petition under Art. 226 (1) (b) and (c) of the Constitution is directed against the order of the Land Tribunal, Kappa (2nd respondent) dated 18-7-1978, a copy of which is produced at Ext.-E under which the 3rd respondent Vepkatagiriappa was granted occupancy right in respect of the land measuring 1 acre 34 guntas comprised in S. No. 9312 of agalagandi village, Koppa Taluk in Chikmagalur District. ( 2 ) THE petitioner Nanjunda Bhatta is the, owner of two items of land comprised in S. No. 88/2 measuring 1 acre 21 guntas and S. No. 93/2 measuring 3 acres 37 guntas of land The 3rd respondent filed a claim application in form No. 7 on 15-12-1975 under S. 48a (1) of the Karnataka land Reforms Act, 1961 (for short the 'act') for being registered as an occupant in respect of the land comprised in S. No. 88/2 and in respect of 1 acre 34 guntas of land comprise,d in S. No. 93 2. The petitioner appeared before the land tribunal Koppa in pursuance of the notice issued to him and admitted the claim of the 3rd respondent for grant of occupancy light in respect of S. No. 88/2. However, he disputed the claim of the 3rd respondent in respect of the other survey, numbep viz. , S. No. 93/2. The tribunal allowed the claim of the 3rd respondent in respect of s. No 88/2 straightaway and granted occupancy right in respect of that land in favour of the 3rd respondent and proceeded with the enquiry, only in respect of S. N. 93/2 since the petitioner disputed the claim of the 3rd respondent in respect of the said survey number. After the enquiry, the tribunal allowed the claim of the 3rd respondent in respect of S. No. 93/2 to the extent of 1 acre 34 guntas of land as per its order Ext.-E. It is the correctness of this order that is challenged by the petitioner in this wtit petition. ( 3 ) SHRI Kadidal Manjappa, learned Counsel for the petitioner, in the course of his arguments, advanced two-fold contentions. ( 3 ) SHRI Kadidal Manjappa, learned Counsel for the petitioner, in the course of his arguments, advanced two-fold contentions. Firstly, he contended that the provisions of the Act do not apply to S. No. 93/2, as no relationship of landlord and tenant existed between the petitioner and the 3rd respondent since the 3rd respondent had surrendered his tenancy right in respect of the said land under a document executed by him on 25-3-1962, a true copy of which is produced at Ext.-A. His second contention was that since the third respondent was admittedly not in possession of the land and cultivating it personally either on 1-3-1974 (date of coming into force of Karnalaka Act 1 of 1974) or immediately prior to that date he is not entitled to registration of occupancy right under S. 45 of the Act. ( 4 ) I shall deal with these contentions in the order in when they were canvassed. ( 5 ) THERE is no dispute between the parties that the petitioner herein is the owner of S. Nos. 88/2 and 93/2 Agalagandi village. It is also not in dispute that the 3rd respondent was holding both the lands as tenant since 1947. It is, also not in dispute that on 25-3-1962, the document Ext.-A came into existence to which the petitioner and the 3rd respondent were parties find under the said document, the 3rd respt surrendered possession of the land comprised in S. No. 93/2. The only dispute in this regard between the parties is, the circumstances under which the surrender in question was made. According to the petitioner there was some dispute between the petitioner and the 3rd respondent in respect of both the lands and in the year 1962, through the intervention of the well-wishers of both the parties a panchayat was converted and in that panchayat, the matter was settled amicably between the parties and a settlement deed Ext.-A was brought about and as per the terms of the said document, the 3rd respondent voluntarily surrendered his tenancy fight in respect of S. No. 93/2 after receiving valuable consideration of Rs. 697 and gave up possession of it in favour of the petitioner and thereafter he remained in possession of s. No. 88/2 only as a tenant Per contra, the stand taken by the, 3rd respondent is that he had surrendered the tenancy right in respect of the land in question in the year 1962 under compulsion by the petitioner with the help of the panchayatdars who made him to execute the document Ext.-A. ( 6 ) FROM the respective stands taken by the, parties, the fact remains that the tenancy right in respect of the land in question was surrendered by the 3rd respondent in favour of the petitioner in the year 1962 under ext.-A and that the petitioner came into possession of it and continued to be cultivating it personally since then. The case put-forward by the petitioner in this regard is amply substantiated by the documents produced by the petitioner viz. , Exhibit-A, the surrender deed dated 25. 3. 1962, and exhibit-B, the record of rights for the period commencing from 1964. 65 to 1966-67 and 1968-69 to 1977-78. In addition to them, he has also produced exhibit-D, his evidence before the tribunal in which he emphasized his case that the 3rd respondent voluntarily surrendered his tenancy right in respect of the land in question in the year 1962 and; since then he (petitioner has been in possession of it and cultivating it personally. As regards the case that the 3rd respondent voluntarily surrendered his tenancy right in compelled to surrender the tenaney right in respect of the land in question there is no material on record except his uncorroborated and interested evidence (Exhibit-C ). In the face of the material produced by the petitioner and in the circumstances of the case, the case put-forward by the 3rd respondent that the surrender of tenancy right by him in respect of the land in question was brought about by force is not acceptable. Consequently, it follows that the surrender in question was voluntary, brought about as a result of amicable settlement of the dispute between the petitioner and the 3rd respondent by the well-wishers of both the parties as is pleaded by the petitioner. ( 7 ) TENANCY is a matter of privity between the lessor and the lessee in respect of the demised and. One the tenancy right is surrendered, it puts an end to the tenancy. ( 7 ) TENANCY is a matter of privity between the lessor and the lessee in respect of the demised and. One the tenancy right is surrendered, it puts an end to the tenancy. In other words, the tenancy ceases to exist. This being the legal position, there is no difficulty in the instant case on the facts proved to reach the conclusion that the land in question was not a tenanted land and the 3rd respondent was not in possession of it as a tenant either on 1,3. 1974 or immediately prior to that date in that view of the matter. Section 44 of the Act wouid not apply to the land, in question. Section 44 stateg that all 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 other than the lands held by them under leases permitted under Section 5 shall stand transferred to and vest in the state Government with effect on and from the date of the commencement of the Amendment Act. It is dear from Section 44 that even if a tenant continues to be in possession of the land after he surrendered the tenancy right in favour of the landlord, such a case is not covered by Section 44. In other words, a tenant who surrendered his tenancy right in respect of any land and continues to be in possession of the said land, his possession cannot be said to be that of a tenant unless he sets up a fresh tenancy after the date of surrender of his tenancy rights. In the instant case it is the case of the 3rd respondent that he was in possession of the land in question right from the year 1947 by virtue of an assignment of the tenancy rights obtained by him and not under any fresh lease after he surrendered the tenancy rights under Exhibit-A. That being the position as rightly conterded by Shri Kadidal Manjappa, since the land in question was not a tenanted land and the third respomdtnt was not in possession of it as a tenant either on 1. 3. 1974 or immediately prior to that date the provisions of the Act do not apply to it. 3. 1974 or immediately prior to that date the provisions of the Act do not apply to it. It follows, that the tribunal has no jurisdiction to entertain the said claim and pass any order thereon. ( 8 ) NOW coming to the second contention it seems to me that the point involved for decision will not detain us for long. It is not the case of the 3rd respondent that he was in possession of the land in question and cultivating it personally either on 1-3-1974 or immediately prior to it. On the other hand, the definite case set up by him before the land tribunal was that he was forced to give up possession and cultivation of the land in question in favour of the petitioner in the year 1962 under Exhibit-A (vide Exhibit-C his deposition before the tribunal ). A Full Bench of this Court in Balesha Rama Khot v. Land Tribunal, Chikodi, (1978) 1 Kar. L. J, 116 FB. held that a tenant who was lawfully entitled to cultivat the land personally immediately prior to the commencement of the Amendment Act but was wrongfully prevented from doing so, is not entitled to registration of occupancy right under Section 45 of the Act. The Court further observed that the tenant who was lawfully entitled to cultivate the land personally immediately prior to 1. 3. 1974 but was wrogfully or illegally prevented from doing so, may take recourse to any one of the remedies provided under the provisions of the Act to recover possession and may request the land tribunal to defer consideration of his application till the possession of the land is restored to him. If he recovers possession in accordance with law, he may then ask the tribunal to proceed with his application on merits. When possession is so recovered the tribunal has to proceed on the basis that the tenant must be deemed to have been personally cultivating the land from the date of his dispossession till the date of restoration of possession. ( 9 ) THE ratio of the above decision would apply to the facts of the case on all fours. Admittedly the 3rd respondent was not in possession of the land in question and cultivating it personally either on 1. 3. 1974, the date of the commencement of the Amendment Act or immediately prior to it. ( 9 ) THE ratio of the above decision would apply to the facts of the case on all fours. Admittedly the 3rd respondent was not in possession of the land in question and cultivating it personally either on 1. 3. 1974, the date of the commencement of the Amendment Act or immediately prior to it. He was dispossessed from the land in question by virtue of thei surrender deed executed by him as per Exhibit-A which was in the year 1962. If really he was aggrieved by the alleged act on the part of the petitioner in compelling him to surrender the land and thereby he was dispossessed his remedy was to approach the proper authority within the time prescribed under Section 7 of the Act for restoration of possession and their approach the Land Tribunal for the relief of grant of occupancy right. In the instant case, as the 3rd respondent was out of possession of the land in question immediately prior to the Amendment Act, he was not entitled to be registered as an occupant under Section 45 of the Act. ( 10 ) SHRI H. Subramanya Jois learned counsel for the 3rd respondent made a submission that the matter may be remitted to the tribunal for fresh disposal as, according to him, the 3rd respondent was not given opportunity to cross-examine the petitioner. I do not find any support to this contention from the records of the proceedings before the tribunal during the course of the enquiry before the tribunal, only the parties were examined. Both of them were not cross-examined. The mere fact that there was no cross-examination of the parties examined, does not give rise to an inference that any party was denied opportunity toi cross examine the other. Further, in the circumstances of the case and also the legal position discussed above, I do not find any ground to remit this matter to the tribunal for reconsideration of the whole matter. The request made on behalf of the 3rd respondent for remitting the matter to the tribunal is unsustainable. ( 11 ) IN the Jesuit, for the reasons aforesaid, the rule is made absolute. The impugned order Exhibit-E is quashed. In the circumstances of the case, I direct each party to bear his own costs. --- *** --- .