Research › Search › Judgment

Karnataka High Court · body

2008 DIGILAW 141 (KAR)

Nagamma S/o late R. Maharaj v. State of Karnataka

2008-02-27

H.V.G.RAMESH

body2008
ORDER H.V.G. Ramesh, J. 1. Petitioner being aggrieved by the order of the Land Tribunal, Shimoga rejecting her application for grant of occupancy rights in Sy. No. 330 measuring 10.37 acres on the ground that it is not a tenanted land, is before this Court challenged the said order. 2. According to the petitioner, her husband late R. Maharaj was the tenant of the land in Sy. No. 104 (renumbered as Sy.No. 330) of Uragadur Village, Shimoga measuring about 10.37 acres which is inclusive of 6 guntas of kharab. Her husband was cultivating the land as a tenant from the year 1964 and was also paying the gutta to the landlord. Evidencing this fact, pahanis for the year 1966-67, 1967-68 and the RTC for the years 1969-79 to 1972-73, 1974-75 to 1977-78 is produced, the grievance of the petitioner is, despite the same, the pahani was changed in the name of Manjunatha Rao and Subba Rao illegally without notice to the petitioner although the petitioner had been cultivating the land as a tenant from the year 1964 and thereafter on the death of her husband, by herself. Even for the years 1989-90 to 2001-02, the pahanis stand in the name of the petitioner for having cultivated the land and for having paid the gutta of 5 palls of paddy per acre and the receipts in this regard is also produced. The Land Tribunal having held that the 10.37 acres of land in Sy. No. 330 is a tenanted land and vested with the government, originally had granted occupancy rights on 4.5.1982 Annexure - G holding that the petitioner has been cultivating the land as tenant as on and prior to 1.3.1974. Against the said order, the 4th respondent and others filed WP 20000/1982 and sought for an injunction. While the application for injunction has been rejected on 14.2.1983, however, writ petition came to be allowed on technical ground and the matter was remanded back to the Land Tribunal, Shimoga. The Land Tribunal after further enquiry, passed an order on 30.1.1989 Annexure - H in favour of the petitioner. Subsequently, the said order of the Tribunal was challenged again by the 4th respondent and others before the Appellate Authority in LRA 37/1989. On the abolition of the Appellate Authority, Civil Petition was filed which was later converted in WP 25179/1993. The Land Tribunal after further enquiry, passed an order on 30.1.1989 Annexure - H in favour of the petitioner. Subsequently, the said order of the Tribunal was challenged again by the 4th respondent and others before the Appellate Authority in LRA 37/1989. On the abolition of the Appellate Authority, Civil Petition was filed which was later converted in WP 25179/1993. The said writ petition was allowed on 15.2.1999 - Annexure - J and once again, the matter was remanded to the land Tribunal. Further, there was also a direction to the parties to maintain statusquo. After remand, although no evidence was let in on behalf of the respondent, without considering the entire material produced and also without considering the sale deed executed by the land lord Sharaf Krishnamurthy on 20.5.1969 which depicts that the petitioner’s husband had purchased the said land in question which is tenanted and had also been cultivated by him, the Land Tribunal has passed the impugned order. Further according to the petitioner, Manjunatha Rao and Subba Rao had filed a partition suit against their mother in respect of this property also impleading the husband of this petitioner who is arrayed as the 7th defendant. The Civil Court after trial, held that Sharaf Krishnamurthy the elder brother of Manjunatha Rao and Subba Rao had sold the property in favour of Maharaj the husband of the petitioner which is invalid as he has not taken the consent of the co-parceners and that Sharaf Krishnamurthy was the Manager of the Joint Family. According to the petitioner, in FDP 10/1979 filed by Manjunatha Rao and others, the petitioner and her children have filed an application for stay and by order dated 29.6.1996 there is a stay of further proceedings. However, after remand by this Court, the Land Tribunal has passed the impugned order. Hence, this petition. 3. The legal representatives of the 4th respondent have filed objections resisting the petition. According to them, the property in Sy. No. 330 measuring 10.37 acres is a joint family property of respondents 3 & 4. One Shama Rao was the common propositor of the family of the 3 & 4 respondents and he had four sons Krishnamurthy, Rama Rao, S Manjunatha Rao and Subba Rao. Krishnamurthy was the eldest son who is no more and is survived by two sons i.e., R3 (a) & (b). One Shama Rao was the common propositor of the family of the 3 & 4 respondents and he had four sons Krishnamurthy, Rama Rao, S Manjunatha Rao and Subba Rao. Krishnamurthy was the eldest son who is no more and is survived by two sons i.e., R3 (a) & (b). In the family, Manjunatha Rao has raised objections for having sold the property in favour of the husband of the petitioner as the said sale was without the consent of Manjunatha Rao and other elderly members of the family as the said property was owned by the joint family. Urging various grounds, the sale of the property is said to have been challenged before the Civil Court and referring to the Civil Court decree, it is stated that the Civil Court has passed an order holding that the sale of the property in favour of the petitioner’s husband as null and void as it was without the consent of other elderly members and the sale is not binding on them. It is stated, by virtue of the decree of the civil court, they have take possession through the process of court. 4. According to the 4th respondent and his legal representatives, the order passed by the land Tribunal on 4.3.1982 is without providing sufficient opportunity as such, in the petition preferred by them, the matter was referred back to the Tribunal for due enquiry and thereafter, on 2 or 3 occasions the matter has been remanded back to the Tribunal by this Court. Ultimately, the impugned order came to be passed by the Land Tribunal which, according to them, does not call for interference. 5. Heard the Counsel for the petitioner and the Counsel representing the respondents. Both the Counsel reiterating the averments in the pleadings, have argued on the same tines. 6. Petitioner’s counsel has relied upon a Division Bench decision of this Court in 1980 (2) KLJ 4 (SN 14) Eregowda Vs. State of Karnataka to contend that if a person had been a tenant of the land even prior to his purchase of the land, the lease would be extinguished if such purchase was valid, as there would be a merger of the interest of the land lord and that of the tenant. State of Karnataka to contend that if a person had been a tenant of the land even prior to his purchase of the land, the lease would be extinguished if such purchase was valid, as there would be a merger of the interest of the land lord and that of the tenant. If the sale was invalid for any reason, the purchaser’s right as a tenant if any, would not be extinguished and it would continue to subsist even if there is a valid sale in favour of another. Further, it is the argument of the petitioner’s Counsel that the husband of the petitioner was originally the tenant of the land in question since 1964 and the property was purchased in the year 1969 from the landlord. Though he purchased the property, his tenancy is continued and further in the year 1972, the 4th respondent filed original suit challenging the very sale made by his brother in favour of the petitioner’s husband. There is a decree being passed holding that the said sale is not binding which necessarily means that the sale by Krishnamurthy in favour of the petitioner’s husband is invalid as such, it is operating with retrospective effect so as to say that the very declaration of the Civil Court dates back to the date of sale as such, the order of the Land Tribunal holding that the petitioner’s husband was not tenant and he was only the owner of the land in question by virtue of the sale deed, is without any substance as the sale has already been challenged prior to the appointed dated i.e., 1.3.1974 and more over, petitioner had filed Form 7 well within the appointed date and as such, the original order of the Land Tribunal granting occupancy rights is not erroneous. However, ignoring the factual position, the Land Tribunal deprived the right of tenancy in respect of the land in question to the extent of the shares of others persons other than Sharaf Krishnamurthy. It is the argument of Sri C.B. Srinivasan, Counsel representing the respondent that the tenant had purchased the property before the appointed date in the year 1969. The tenancy rights merged with the owner as such, he was only an owner and not tenant and he could not have maintained the application in Form 7 for grant of occupancy rights. It is the argument of Sri C.B. Srinivasan, Counsel representing the respondent that the tenant had purchased the property before the appointed date in the year 1969. The tenancy rights merged with the owner as such, he was only an owner and not tenant and he could not have maintained the application in Form 7 for grant of occupancy rights. As such, in view of the Doctrine of Merger, petitioner is not entitled to claim any right as a tenant of the land which he has purchased as is well settled by the decision of this Court and the Apex Court. Accordingly, he has relied upon the decision in the case of Ramakrishna Udupa Vs. Smt Subhadramma and Ors. ILR 2000 Kar 4431 wherein the Division Bench of this Court has observed dial the tenant purchased the land which he was cultivating and on coming into force of the Land Reforms Act, he filed Form 7 in respect of the land he purchased showing the original owner as the landlord. The Land Tribunal dismissed the Form 7 which order was confirmed in the writ petition. In appeal the Division Bench has held, without transfer of title in favour of the tenant qua the said land would inevitably result in the extinction of the right of tenancy held by him on the Doctrine of Merger. Such extinction follows by operation of law and does not depend upon the intention of the parties. That being so, question of land vesting in the State under the provisions of the Land Reforms Act would not arise. The land ceased to be under the cultivation of the tenant on the date the Act came into force and thus, held that the filing of Form 7 by the tenant was in abuse of the process of law. Referring to the above decision, Counsel for the respondent has vehemently contended that in view of the ratio laid down by the Division Bench, the Land Tribunal has rightly rejected the claim of the petitioner for granting occupancy rights. 7. In the light of the arguments advanced, let me consider whether the Land Tribunal was justified in not granting occupancy rights in favour of the petitioner and whether the impugned order requires interference. The undisputed facts are, property in Sy. No. 330 measuring about 10.37 acres was originally a tenanted land as on 1964. 7. In the light of the arguments advanced, let me consider whether the Land Tribunal was justified in not granting occupancy rights in favour of the petitioner and whether the impugned order requires interference. The undisputed facts are, property in Sy. No. 330 measuring about 10.37 acres was originally a tenanted land as on 1964. The same was purchased by the husband of the petitioner during 1969. Subsequently during 1972, there was a suit filed by the family of the vendors i.e., against the property sold by one Sharaf Krishnamurthy who is said to be the elder member of the joint family consisting of himself and three other brothers. In the suit filed, the landlords have challenged the said sale as not binding on them and there is a lis pending in the year 1972 itself i.e., prior to 1.3.1974 disputing the very sale of the land in question in favour of the tenant himself. Further, there is a decree passed around 1978 or so and it is also seen that Form 7 was filed well within the appointed date. According to the respondents they have taken possession of the land in question by virtue of the decree of the civil court to some extent but, however, according to the petitioner, in the FDP filed by the respondents before the Civil Court, she has filed an application and has obtained stay of the FDP proceedings. 8. In the instant case, though there is a sale of the property of the land in question which is the subject matter of tenancy held by the petitioner himself, there was a challenge to the said sale. The sale has been challenged in the year 1972 itself by some other co-parceners of the joint family. This situation is almost similar to the decision in Eregowda’s case referred above. The short notes that is produced does not contain the full text. However, the full text of the order which is available depicts that if the petitioner had been a tenant of the land even prior to the purchase of the land, the lease would be extinguished if such purchase was valid as there would be a merger of the interest of the landlord and that of the tenant. If the sale in his favour was invalid for any reason, his right as a tenant if any could not be extinguished but would continue to subsist.... If the sale in his favour was invalid for any reason, his right as a tenant if any could not be extinguished but would continue to subsist.... It is further held that since it was subsequently held in the suit that the sale in his favour was not valid as being affected by lis pendens, the dismissal of his application by the Tribunal is liable to be re-opened. Accordingly, the matter was remitted to the Tribunal for deciding afresh whether the petitioner therein was a tenant of the land prior to the appointed date and also whether he continued to be in possession of the land till 1.3.1974. 9. In the instant case, what is being noticed is, although the suit is filed by the 4th respondent challenging the sale made by his brother in favour of the husband of the petitioner, the sale is of the year 1969, it was challenged in the year 1972. However, there was a tenancy right in favour of the petitioner’s husband since 1964 itself. This fact has not been disputed. When once there is a challenge made to the sale prior to 1.3.1974 itself, when the suit was pending, the said sale was of course subject matter of the suit which was pending as on that date. Subsequently, it is also found that the civil court decreed the suit filed by the 4th respondent holding that the sale of the property by the 3rd respondent was in respect of the joint family property of the respondents and the sale to the extent of shares of other co-parceners is not binding which necessarily implies the sale is invalid to the extent of challenge made and also excluding the share of the 3rd respondent Sharaf Krishnamurthy who as the head of the family, sold the property in favour of the tenant who was holding the said land. In the circumstances, when the suit filed by 4th respondent was decreed, necessarily the sale becomes invalid as such, the Doctrine of Merger was also subject to the order of the Civil Court. In the circumstances, when the suit filed by 4th respondent was decreed, necessarily the sale becomes invalid as such, the Doctrine of Merger was also subject to the order of the Civil Court. In that view of the matter, though literally the petitioner held the land originally as a tenant and thereafter by virtue of the sale deed as owner of the land, since it was subject matter of the suit pending, it cannot be gain said that as on 1.3.1974, the petitioner is only holding the land in possession as an owner and not as a tenant. More over, in such situation when the petitioner also filed the application in Form 7A purporting to be under Section 48A of the Land Reforms Act, it necessarily speaks to the fact that he had filed application for grant of occupancy rights and by virtue of the same on filing of such application, necessarily when a controversy was there as on or prior to the appointed date, since it was a tenanted land, it has to be treated that the land vested with the Government. Further, when the ratio laid down in Eregowda’s case by the Division Bench, squarely applies to the facts and circumstances of the case, the Land Tribunal invariably has to consider the application for grant of occupancy rights to the petitioner as he was holding the land as a tenant prior to and as on 1.3.1974. Although the order of the Civil Court is subsequent, as is noted by the Division Bench in the above case, it dates back to the date of the original sale deed and the sale became invalid to the extent it was set aside by the Civil Court’s order. In that situation, it is for the Land Tribunal to act upon the same as if it is a tenanted land and to grant occupancy rights. Thus, the impugned order passed by the Land Tribunal on 8.11.2002, Annexure-N has to be quashed. 10. In that situation, it is for the Land Tribunal to act upon the same as if it is a tenanted land and to grant occupancy rights. Thus, the impugned order passed by the Land Tribunal on 8.11.2002, Annexure-N has to be quashed. 10. The Land Tribunal in the course of its order, referring to the argument advanced by both the parties though has noted for the year 1969-70 and thereafter, the name of the petitioner is found in Column 12(3) and also that ‘guttige’ has been struck of and over written, it has come to the conclusion that the names of Sharaf Krishnamurthy and Manjunatha Rao is mentioned in the RTC for the year 1973-74 and accordingly, was of the view that the land in question belongs to respondents 3 & 4 and it was an inam land. There is re-grant of the inam land in favour of respondents 3 & 4. However, the Land Tribunal has noted that Sharaf Krishna Murthy has sold the land in favour of the tenant Maharaj on 20.5.1969 and that sale has been challenged by Manjunatha Rao before the Civil Court in O.S 5/1972 which has been decreed on 29.3.1974 and subsequently, possession was taken by the 4th respondent. Accordingly, it was of the view that the land in question has to be treated as vested with the Government. 11. In the circumstances, in view of the ratio laid down in Eregawda’s case, after going through the full text of the order produced by the petitioner’s Counsel, it has to be held that the land has to be treated as vested with the Government as on 1.3.1974. 12. For the foregoing reasons, the impugned order is quashed. The Land Tribunal is directed to grant occupancy rights in favour of the petitioner to the extent of land which has been challenged by the 4th respondent and others excluding the share of the 3rd respondent of which already ownership is available to the tenant by virtue of the sale deed, to the extent the Civil Court has not interfered.