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2007 DIGILAW 375 (KAR)

MUPPANNA v. STATE OF KARNATAKA

2007-06-28

MOHAN M.SHANTANAGOUDAR

body2007
ORDER Petitioners' father namely Sri Mallappa Mundaganur claiming to be the tenant filed an application under Section 48-A of the Karnataka Land Reforms Act, 1961 in Form 7 for grant of occupancy rights over the land bearing Sy. No. 57 measuring 27 acres 10 guntas situated at Konnur Village: Respondent 3 is the landlord, since deceased is represented by his legal representatives. The records disclose that the land in question was leased by the erstwhile owner prior to 1951 itself. The entries in the records of rights for the years 1951-52 to 1960-61 stood in the name of the petitioners' father. As could be seen from the Mutation Entry No. 4330, the land in question vested in the State. Further, Mutation Entry No. 277 makes it clear that the petitioners father's name was entered in the revenue record as a protected tenant. Subsequently, in the year 1961, a receiver came to be appointed by the Civil Court in the Civil litigation, i.e., O.S. No. 90 of 1941 which arose within the landlords' family. Thus, the receiver took possession of the property in the year 1961 from the petitioners' father who was cultivating the property as tenant and continued in possession as a receiver till 1991. For some years during interregnum, the receiver leased or mortgaged the property in favour of the various persons including the petitioners' father every year. The name of the petitioner's father continued even after 1961 intermittently. It is also in dispute that the receiver was discharged in the year 1991 and he was directed by the Civil Court to handover the possession of the property to the respective parties. The important mutation entry is Mutation Entry No. 839, which discloses that the receiver took possession of the property from the petitioners' father on 1-3-1961. As aforementioned, the entries in the revenue records stood in the name of the petitioners' father since 1951 itself Mode of cultivation recorded in record of rights is No. 3'. Hence, it is clear that the petitioners' father was a tenant of the petition property much prior to 1961 i.e., the year in which the receiver was appointed by the Civil Court. Added to that, the name of the father of petitioners was entered in the revenue records as protected tenant by virtue of Entry No. 277. Hence, it is clear that the petitioners' father was a tenant of the petition property much prior to 1961 i.e., the year in which the receiver was appointed by the Civil Court. Added to that, the name of the father of petitioners was entered in the revenue records as protected tenant by virtue of Entry No. 277. As the petitioners father was in possession of the property as a protected tenant, his leasehold rights would not extinguish by appointment of the receiver subsequently. At the most, the leasehold rights would be kept in abeyance or become dormant during the subsistence of the receiver. Leasehold rights automatically revive after the discharge of the receiver. Thus, the leasehold rights vested with the petitioners have not extinguished during the subsistence of the receivership. They were kept in abeyance. They automatically revived in the year 1991. The property never vested in the Civil Court. Only the power of superintendence vested in the Court. When the said power was withdrawn, nature of possession was relegated to the earlier position. The third parties who came in possession of the property during the subsistence of receiver appointed by the Court, were legally obliged to surrender possession, on the withdrawal of the management by the Court. Accordingly, in this matter also the third parties who were in possession of the property on yearly basis handed over possession of the property to the receiver and consequently the receiver handed over the same to the tenant (petitioner's father) in the year 1991. The receiver is appointed to preserve the property for the benefit of successful litigant. It cannot be the intention at all of the Legislature that an estate or land which is exposed to a litigation for whatever reason, if managed by the Court through a receiver should result in the title holder losing the title. At this stage, it is relevant to note the provisions of Section 108 of the Karnataka Land Reforms Act, which read thus: "108. At this stage, it is relevant to note the provisions of Section 108 of the Karnataka Land Reforms Act, which read thus: "108. Lands taken under management of the Court of Wards, etc.-Subject to the provisions of Section 110, nothing in the provisions of this Act except Section 8 shall apply to lands taken under the management of the Court of wards or of a Government Officer appointed in his official capacity as a guardian under the Guardians and Wards Act, 1890, or to the lands taken under management temporarily by the Civil, Revenue or Criminal Courts by themselves or through the receivers appointed by them during the period of such management: Provided that.- (a) in the case of a tenancy subsisting on the date of taking over the management the provisions of Section 44 shall apply and the land shall vest in the Government; (b) in the case of a tenancy created during the period of management, when the land is released from such management, the tenant shall be dispossessed and the possession of the land shall be delivered to the person lawfully entitled to such possession; (c) with effect from the date on which such land is released from such management, all the provisions of this Act shall apply to such land". The combined reading of provisos (a) to (c) to Section 108 would further make it clear that in case of tenancy subsisting as on the date of taking over the management by the receiver, the provision of Section 44 of the Karnataka Land Reforms Act shall apply and the land shall vest in the State Government. In this matter, the land is vested in state as is ., clear from M.E. No. 4330. It is further clear that with effect from the date on which such land is released from such management, the provisions of Karnataka Land Reforms Act shall apply to such land. Section 108 indicates that if the lands are under the management temporarily by a Civil Court, the provisions of the Karnataka Land Reforms Act shall not apply. The proviso (a) further indicates that the Bar under Section 108 will have no application if the tenancy was "subsisting" at the time when the lands were taken under the management temporarily by the Civil Court. The proviso (a) further indicates that the Bar under Section 108 will have no application if the tenancy was "subsisting" at the time when the lands were taken under the management temporarily by the Civil Court. In other words, if the land was leased by the landowner prior to the taking over by the receiver in a Civil Court proceeding, then that tenant would be entitled to occupancy rights if he was a tenant under the provisions of the Karnataka Land Reforms Act on the appointed date. If, however, the tenancy was created by the receiver himself, then the tenant would not be entitled to occupancy rights. Once I hold that the tenancy was created by the erstwhile owner, prior to the appointment of receiver, then there is no bar for granting occupancy rights to the tenants-petitioners. The phrase "subsisting" tenancy found in Section 108 of the Karnataka Land Reforms Act refers to a tenant pre-existed by induction as a tenant by the title holder earlier to the take over of the management upon the Court orders. The object of appointment of receiver by the Civil Court is to preserve the property and for this purpose it has to manage the same. On cessation of the receiver appointed by the Court, the Superintendence is Withdrawn, which means, the person who held the land prior to appointment of receiver is entitled to enter the property and manage its affairs as he deems fit. Thus, the tenancy rights which were vested in the tenant prior to appointment of the receiver by Court would not vanish or extinguish during the subsistence of the receiver appointed the Court. Tenancy merely was kept in abeyance during the said period and the tenant can be said to be in possession "de jure". Thus, there is no bar for registration of the tenant as an occupant under Section 45 of the Karnataka Land Reforms Act as he held the property as a tenant "de jure" as on 1-3-1974. 2. Thus, the provisions of the Karnataka Land Reforms Act are fully applicable to the land in question. As the petitioner is undoubtedly a, tenant, he is entitled to be registered as an occupant over the land in question. These facts are not considered properly by the Land Tribunal. Consequently, the same has resulted in miscarriage of justice. 2. Thus, the provisions of the Karnataka Land Reforms Act are fully applicable to the land in question. As the petitioner is undoubtedly a, tenant, he is entitled to be registered as an occupant over the land in question. These facts are not considered properly by the Land Tribunal. Consequently, the same has resulted in miscarriage of justice. Looking to the facts and circumstances, the petitioners are entitled to be registered as occupants. Occupancy Certificate in Form 10 shall have to be issued in their favour. 3. Hence, the following order is made.- The impugned order is quashed. Form 7 filed by the petitioners is allowed. The Tribunal is directed to grant occupancy rights to the petitioners. The petition is allowed accordingly.