B. S. MOHIYUDDIN v. STATE OF KARNATAKA — 1986 DIGILAW 267 (KAR)

RAMA JOIS, J. ( 1 ) THE facts of the case, in brief, are these: 500 acres of land in V. S. No. 15 of Hegalathi village in Thirthahalli Taluk was an inam land. One Bhagirathi Bai was the inamdar of the said land in the year 1937 She executed a registered 'mulgeni karar' in favour of one Kalinga rao on 26-7-1937, a copy of which is produced as Annexure-A As the entire case stands upon the said Karar, it is necessary to set-out the same which reads: (Bold words by us) according to the appellant the said kalinga Rao leased the said land in his favour on 10-6-1958 by executing a 'permanent Saguvali Karar' (vide Anne- xure-B ). Subsequently, a registered lease-deed dated 29-7-1961 was executed by Kalinga Rao for a period of 90 years in favour of the appellant (vide annexure-C ). Before the execution of the aforesaid registered lease-deed the title in the inam land in question stood vested in the State under the provisions of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 (hereinafter referred to as the Act ). Though under Section 3 of the Act the inam tenure of the lands in the former State of Mysore was abolished, it provided that the title to the lands vested absolutely in the State of Mysore with effect on and from the date on which the Act came into force. Certain provisions ware incorporated into the Act for conferring occupancy rights on permanent and quasi-permanent tenants on certain conditions. The relevant provisions are sections 5 and 6 therein which reads :"permanent TENANTS TO BE registered AS OCCUPANTS ON certain CONDITIONS-5 (1) Subject to the provisions of sub-section (2), every permanent tenant of the inamdar shall, with effect on and from the date of vesting, be entitled to be registered as an occupant in respect of all lands in respect of which he was a permanent tenant immediately before the date of vesting : provided that no person who has been admitted into possession by an inamdar on or after the first day of july 1948, shall, except where the deputy Commissioner after an examination of all the circumstances otherwise directs, be entitled to be registered as an occupant in respect of such land. (2) In addition to the annual land revenue payable in respect of the lands a permanent tenant entitled to be registered as an occupant of any land under cub-section (1) shall be liable to pay to the Government, as premium for acquisition of ownership of that land, an amount equal to twenty times such land revenue. The amount of premium shall be payable in not more than ten annual instalments along with the land revenue and in default of such payment, the amount due shall be recoverable as an arrear of land revenue due on the land in respect of which it is payable. Provided that where a permanent tenant entitled to be registered as an occupant of the land under sub-section (1) is shown as a registered occupant in the settlement register and other records referred to in section 117 of the Land Revenue Code, or where the rent paid by a permanent tenant entitled to be registered as an occupant under sub-section (1) is equal to the land revenue no premium shall be payable under this subsection. "quasi-PERMANENT TEN ANTS TO be REGISTERED AS OCCUPANTS ON certain CONDITIONS- 6. "quasi-PERMANENT TEN ANTS TO be REGISTERED AS OCCUPANTS ON certain CONDITIONS- 6. (1) Subject to the provisions of sub-section (2), every quasi-permanent tenant shall, with effect on and from the date of vesting, be entitled to be registered as an occupant in respect of all lands of which he was a quasi- permanent tenant, provided: (1) he continued to be a tenant of such lands until the date of vesting ; or (ii) he had been unlawfully dispossessed of such lands by the inamdar between the 30th day of June 1948 end the date of vesting: provided further if by the operation of this sub-section the inamdar is left with less than two and a half acres of garden land or five acres of wet land or ten acres of dry land in respect of which he is entitled to be registered as an occupant, the right of quasi- permanent tenants to be registered as occupants under this sub-section, shall be limited to the extent which shall be determined as follows : the total area of lands in respect of which quasi-permanent tenants would have been entitled to be registered as occupants shall be divided among the quasi-permanent tenants and the inamdar in such manner as may be prescribed by rules so that the inamdar may get not less than two and a helf acres of garden land, or five acres of wet land or ten acres of dry land. (2) In addition to the annual land revenue payable in respect of a land, a quasi permanent tenant entitled to be registered as an occupant under subsection (1) shall be liable to pay to the Government, as premium for acquisition of ownership of that land, an amount equal to such number of multiples of the land revenue payable in respect of the land or such basic value per acre of the land, whichever is more, as is specified in columns 3 and 4 respectively of the Schedule as applicable to dry land, wet land and garden land, as the case may be, situated in the area specified in the corresponding entry in column 2 of the said schedule. The amount of premium shall be payable in not more than ten annual instalments along with the annual land revenue, and in default of such payment, the amount due shall be recoverable as an arrear of land revenue due on the land in respect of which it is payable: provided that the provisions of this section shall not apply to quasi- permanent tenants in a minor inam. "according to sub-section (1) of section 5 every permanent tenant was entitled to be registered as an occupant in respect of aii lands of which he was a permanent tenant immediately before the date of vesting. The proviso, however, qualified the right sub-section (1) to the effect that if a person had been admitted into possession after the 1st day of July 1948 by the inemdar, he would not be entitled to be registered as an occupant unless, on an examination of all the circumstances, the deputy Commissioner otherwise directed. Under Section 9 of the Act an inamdar was entitled to be registered as an occupant in respect of all lands other than those specified in Clauses (i), (ii) and (iii) of the said section. One of the Items of lands is lands reserved under Section 3 (1) (b) of the Act and also the lands in respect of which any person, except inamdars, is entitled to be registered as occupants under Sections 4, 5, 6, 7 or 8 i. e. , Kadim tenants, permanent tenants, quasi - permanent tenants etc. ( 2 ) AFTER the Act came into force the appellant made an application before the Special Deputy. Commissioner for inarns Abolition, Shimoga claiming occupancy rights in respect of 500 acres of land in V. S. No. 15 under Section 5 of the Act. This claim was rejected by the Special Deputy Commissioner on the ground that since the lease-deed (Annexure-A) was subsequent to the date of vesting, it was of no consequence and the land in question came within the purview of Section 3 of the Act. This order was confirmed, on appeal, by the karnataka Appellate Tribunal (Revenue), bangalore. Aggrieved by the said order the appellant preferred a Writ Petition. The Writ Petition was also dismissed upholding the decisions of both the authorities. Aggrieved by the said order the appellant has presented this Writ appeal. This order was confirmed, on appeal, by the karnataka Appellate Tribunal (Revenue), bangalore. Aggrieved by the said order the appellant preferred a Writ Petition. The Writ Petition was also dismissed upholding the decisions of both the authorities. Aggrieved by the said order the appellant has presented this Writ appeal. ( 3 ) IT is not disputed by the learned counsel for the appellant that if the appellant was not a permanent tenant he was not entitled to claim occupancy rights in respect of the land in question. His contention. However, was that the appellant was a permanent tenant in view of the clear definition of the expression 'permanent tenant' in subsection (12) of Section 2 of the Act read with Section 79 of the Karnataka land Revenue Code, 1888 (hereinafter referred to as the Code) and the undisputed registered lease-deed dated 26-7-1937 (Annexure-A ). ( 4 ) SUB-SECTION (12) of Section 2 reads :"12. 'permanent tenant' means a person who either under Section 79 of the Land Revenue Code or otherwise is entitled to a tenancy in respect of any land used for agricultural purposes the duration of which is co-extensive with the - duration of the tenure of the inamdar. "section 79 of the Code with its explanation reads thus :"79. AMOUNT OF RENT PAYABLE by TENANT A person placed as tenant in possession of land by another, or, in that capacity, holding, taking or retaining possession of land permis- sively from or by sufferance of another, shall be regarded as holding the same at the rent, or for the services, agreed upon between them ; or, in the absence of satisfactory evidence of such agreement of the rent payable or services renderable by the usage of the locality, or if there be no such agreement or usage, shall be presumed to hold at such rent, as, having regard to all the circumstances of the case shall be just and reasonable. ""duration OF TENANCY. ""duration OF TENANCY. And, where by reason of the antiquity of a tenancy, no satisfactory evidence of its commencement is forthcoming, and there is not any such evidence of the period of its intended duration, if any, agreed upon between the landlord and tenant, or those under whom they respectively claim title, or any-usage of the locality as to duration of such tenancy, it shall, as against the immediate landlord of the tenant, be presumed to be co-extensive with the duration of the tenure of such landlord and of those who derive title under him. EXPLANATION-In the following cases such a presumption shall be raised- (1) where the tenant has been recognised as a permanent tenant by the landlord or by a Court in a suit to which the landlord was a party ; (2) where a tenant holds lands in respect of which any alienation has been recognised by the landlord or by a Court in a suit to which the landlord was a party or where the alienation has not been contested by the landlord for twelve years from the date of the service of notice of alienation to the landlord ; (3) where for the better cultivation of the holding the tenant has made permanent improvements thereon to the knowledge of the landlord and has been in undisturbed possession of the holding continuously for twelve years thereafter provided that the landlord has made no contribution for such improvements nor recovered enhanced rent from the tenant nor given any notice in writing to the tenant that such improvements would not create any new rights ; (4) where, in the absence of a contract regarding the nature and duration of tenancy, the tenant has established that he has been in continuous possession on payment of fixed rent for a peridtf of twelve-years or more. PRESUMPTION AS TO TENURE - and where there is no satisfactory evidence of the capacity in which a person in possession of land in respect of which he renders service or pays rent to the landlord, receives, holds or retains possession of the same, it shall be presumed that he is in possession as tenant. PRESUMPTION AS TO TENURE - and where there is no satisfactory evidence of the capacity in which a person in possession of land in respect of which he renders service or pays rent to the landlord, receives, holds or retains possession of the same, it shall be presumed that he is in possession as tenant. SAVING CLAUSE-Nothing contained in this section shall affect the right of the landlord (if he have the same either by virtue of agreement, usage or otherwise to enhance the rent payable, or services renderable, by the tenant, or to evict the tenant for non-payment of the rent, or non-rendition of the services, either respectively originally fixed or duly enhanced as aforesaid. " (Italic words by us) according to sub-section (1-2) of section 2 of the Act two categories of tenants are regarded as - permanent tenants, viz. , (1) a person who is regarded as a permanent tenant under Sec. 79 of the Code ; or otherwise a person is entitled to a tenancy, the duration of which is co-extensive with the duration of the tenure of the inamdar. The learned Single Judge referring to the second para of Section 79, extracted above, was of the view that it was only in cases where, having regard to the antiquity of a tenancy, satisfactory evidence of its commencement was not forthcoming, the tenancy could be regarded as a permanent one and as in the present case the tenancy commenced with the registered lease deed dated 26-7-1937, the appellant, to whom the tenancy rights were transferred by kalinga rao, could not be regarded as a permanent tenant. ( 5 ) LEARNED counsel for the appellant invited our attention to Explanation (4) below the second paragraph of Section 79 of the Code. According to the said provision, if the nature and duration of the tenancy could not be ascertained, if the tenant establishes that he had been in continuous possession on payment of fixed rent for a period of 12 years or more, a presumption had to be raised that he was a person whose tenure was co-extensive with that of the land- ford. to view of the explanation, he submitted that even if it was not possible to ascertain the nature and duration of the tenancy from the lease deed dated 26-7-1937, still Kalinga rao and his successors in interest could claim to be permanent tenants as the tenancy was for a period of more than 12 years long before the date of vesting. Alternatively, the learned counsel submitted that even according to the language of the registered lease deed dated 26-7-1937, extracted earlier, it could be easily ascertained that the appellant's tenancy was co-extensive with that of the landlord for the reason that it was a 'moolageni', which itself meant 'permanent tenancy'. It appears that the attention of the learned Single Judge was not drawn to clause (4) of the Explanation below the second paragraph of Section 79 of the Act. In view of that Explanation, as undisputedly the tenancy had been created as early as on 26-7-1937 and a rent had been fixed in the lease deed, as can be seen from its contents, extracted earlier, the tenancy of Kalinga rao and of the appellant, to whom it was transferred, should be presumed to be co-extensive with the duration of the tenure of the landlord and therefore the appellant has to be regarded as a permanent tenant. ( 6 ) WE shall now proceed to examine the case of the appellant under clause (4) of the Explanation to Section 79 of the Code. ( 7 ) THE learned Single Judge was of the view that the 'saguvali Karar' said to have come into existence between the appellant to be produced only before the Special Deputy commissioner and there had been no recital about the same in the registered lease deed executed by Kalingarao in favour of the appellant on 29-7-1961. In our view, the inference drawn is well founded. The 10-6-1958 Saguvali Karar is not registered. If really such a Saguvali Karar had existed, in the normal course, there would have been a reference to the execution of such a Saguvali karar in the registered deed dated 26-7-1937. Therefore, we proceed on the basis that 10-6-1958 Saguvali Karar was not in existence. However, it makes no difference for the case of the appellant. If really such a Saguvali Karar had existed, in the normal course, there would have been a reference to the execution of such a Saguvali karar in the registered deed dated 26-7-1937. Therefore, we proceed on the basis that 10-6-1958 Saguvali Karar was not in existence. However, it makes no difference for the case of the appellant. Once it is held that Kalingarao was a permanent tenant on and after the expiry of 12 years from the date of registered deed dated 26-7-1937, the appellant became a permanent tenant in view of the definition contained in Section 2 (12) of the Act read with Section 79 of the code, on and after 26-7-1949. The Act. was enacted in the year 1954, and it came into force some time in 1959. Therefore, as on the date of coming into force of the Act, Kalingarao was a permanent tenant entitled to the registration of the lands in question under section 5 of the Act. The said right has been transferred in favour of the appellant by registered deed dated 29-6-1961. There was no bar under any of the provisions of the Act or any other law for the transfer of right of permanent tenants and therefore by virtue of the registered lease deed dated 29-7-1961 the appellant got into the shoes of Kalingarao and acquired the same right which Kalingarao had on the date of vesting. The case put forward by the appellant relying on clause (1) of the Explanation read with the contents of Moolageni Karar dated 26-7-1937, contents of which are extracted earlier, to say that he was a permanent tenant also appears to be good. As the appellant is entitled to succeed on the basis of Explanation (4), it is unnecessary for us to pursue this point. ( 8 ) IN the order of the learned single Judge, there is a reference to section 27 of The Mysore Tenancy Act. 1952, which prohibited assignment of rights of a tenant. The learned Single judge held that as the transfer of the tenancy rights was prohibited by Section 27 of The Mysore Tenancy Act, the lease in favour of the appellant on 29-7-1961 was invalid and therefore the appellant could not claim occupancy rights, The said section reads :"27. 1952, which prohibited assignment of rights of a tenant. The learned Single judge held that as the transfer of the tenancy rights was prohibited by Section 27 of The Mysore Tenancy Act, the lease in favour of the appellant on 29-7-1961 was invalid and therefore the appellant could not claim occupancy rights, The said section reads :"27. SUB-DIVISION, SUB-LETTING and ASSIGNMENT PROHIBITED: no sub-division or sub-letting of the land or assignment of any interest held by a tenant shall be valid. Such sub-division, sub-letting or assignment shall make the tenancy liable to termination: provided that nothing in this subsection shall prejudicially affect the rights of a permanent tenant or any tenant the duration of whose tenancy is presumed to be co-extensive with the duration of the landlord under Section 79 of the Mysore Land Revenue code, 1888 or any tenant the duration of whose tenancy exceeds twenty years. " (Italic words by us) the main part of the Section prohibits sub-division or sub-letting of the land or assignment of any interest held by a tenant. According to the proviso, if such sub-letting or assignment of interest is made by a permanent tenant, it shall not be valid. It is by applying this main provision, the learned Single Judge held that the transaction was invalid. But the proviso in the Section expressly states that nothing in the subsection shall prejudicially affect the rights of a permanent tenant to transfer his rights and there is also reference to section 79 of the Land Revenue Code. We have held earlier that Kalingarao was a permanent tenant by virtue of the registered lease deed dated 26-7-1937, and therefore the bar created by Section 27 of The Mysore Tenancy Act, had no application as the right of a permanent tenant to assign his interest has been excepted from the prohibition incorporated in the said Section. Therefore, the said provision do not operate against kalingarao and therefore the registered lease deed dated 29-7-1961 could not be regarded as invalid. ( 9 ) THE only other point for consideration is, as the land undisputedly is a forest land, whether the appellant was entitled to occupancy rights in respect of the land under Section 5 of the Act ? ( 9 ) THE only other point for consideration is, as the land undisputedly is a forest land, whether the appellant was entitled to occupancy rights in respect of the land under Section 5 of the Act ? a comparision of Sections 4, 5, 6, 7 and 9 of the Act would indicate that as far as a tenant is concerned, he is entitled to get occupancy rights in respect of the lands of which he was a tenant of an inamdar before the date of vesting irrespective of the nature of the land. It is only when communal lands, forest lands, gomal lands, etc. , were not in possession of different categories of tenants, on whom the right to get occupancy rights has been conferred by the provisions of the Act, such lands would go to Government. An Inamdar has no right toclaim occupancy rights of such lands under section 9 of the Act. Therefore, if the appellant was claiming occupancy rights as an Inamdar, certainly he would not be entitled to occupancy rights as the lands in question were forest lands. The appellant was claiming occupancy rights as a permanent tenant under Section 5 of the Act and the said Section does not create any bar for registering a tenant of a forest land as an occupant. Therefore, it is clear that notwithstanding the fact that the lands were forest lands, as the appellant was a successor of Kalingarao, who was a permanent tenant on the date of vesting, he was entitled to the occupancy rights. The claim by a person, who purchased the interest of a person who was entitled to occupancy rights on the date of vesting, subsequent to the date of vesting, that he was entitled to get occupancy rights has been upheld by this Court in the case of Shantha Rao v. M. R. A. T. (1965-2 Mys L. J. 324) and in sreenivasa Murthy v. State of Mysore (1915 (1) Kar. L. N. S. N. Item 175, p. 60 ). L. N. S. N. Item 175, p. 60 ). ( 10 ) SRI S. V. Jagannath, learned government Advocate, submitted that if the appellant was regarded as a permanent tenant having regard to the provisions of Section 2 (12) of the Act read with Section 27 of the Mysore tenancy Act, he may be entitled to occupancy rights notwithstanding the fact that the lands weie forest lands as the said restriction applied only to section 9 of the Act. He, however, submitted that the provisions contained in the Land Reforms Act regarding ceiling would be applicable. ( 11 ) THE right created under Section 5 of the Act is as on the date of vesting. If the appellant gets the occupancy rights in respect of the lands in question, such occupancy rights accrues to him from the date of vesting. But, as subsequently the Land Reforms Act had come into force on 1-3-1974 and according to the provisions of the said act he cannot retain so much of land, certainly the provisions of the said Act regarding ceiling would be attracted and the authorities are entitled to take appropriate action under the provisions of the Land Reforms Act. ( 12 ) IN the result, we make the following order : (i) The writ appeal is allowed, (ii) In reversal of the order made by the learned Single Judge, Writ petition No. 11334 of 1977 is allowed, (iii) The orders of the Special Deputy commissioner, Shimoga (Annexure-H) and the order of the Karnataka Appellate Tribunal (Annexure-J) confirming the order of the Deputy Commissioner, are set aside. (iv) The matter shall stand remitted to the Land Tribunal, Tirthahalli, for taking further steps for conferment of occupancy rights on the appellant in accordance with law, which would be subject to the provisions of the karnataka Land Reforms Act. --- *** --- .