JUDGMENT In these writ appeals, order dated 10-3-2000 passed by the learned Single Judge dismissing the writ petition filed by the appellants herein is challenged. In the writ petition, the appellants herein had challenged the order dated 19-5-2007 passed by the Land Tribunal, Srirangapatna. Insofar as it related to the grant of occupancy rights in favour of respondents 3 to 9 herein. 2. The dispute relates to Sy. Nos. 104, 118 and 126 of Channahalli Village of Srirangapatna Taluk. Deceased Chikkanna and Chamegowda, both sons of Rajegowda filed applications in Form 7 claiming occupancy rights as tenants in respect of these lands. Writ petitioners/appellants herein are the legal representatives of the said Chikkanna and Chamegowda. The Tribunal granted occupancy rights in respect of 1 acre 34 guntas in Sy. No. 104 and 26 guntas in Sy. No. 104/2 to the petitioners. Different portions of lands comprised in these three survey numbers were granted in favour of the predecessors-in-title of private respondents herein, which they had claimed. Aggrieved by the grant of occupancy rights in respect of different portions of land in favour of other private respondents, the writ petitioners/appellants herein filed the writ petition only to the extent of rejection of their claim. 3. The main contention urged in the writ petition was that the Land Tribunal committed an illegality in granting occupancy rights in favour of the respondents who claimed to be sub-tenants under the original tenants. It was contended that after 2-10-1965, no tenancy could have been created and as such the persons who claimed grant of occupancy as sub-tenants could not be regarded as lawful tenants entitling for confirmation of occupancy rights as per the provisions of the Karnataka Land Reforms Act, 1961 (for short, the 'Act'). It was contended that the so-called sub-tenants were only trespassers. It was also contended that respondents 3 to 9 were not at all in possession and cultivation of any portion of the lands in question. 4. The learned Single Judge has held that the minute scrutiny of the records made by him revealed that the names of Chikkanna, Rajegowda and Chamegowda (petitioners and their father) did not figure in column (12) of the record of rights, insofar as lands in Sy. Nos. 118 and 126 were concerned. As far as the land bearing Sy. 4. The learned Single Judge has held that the minute scrutiny of the records made by him revealed that the names of Chikkanna, Rajegowda and Chamegowda (petitioners and their father) did not figure in column (12) of the record of rights, insofar as lands in Sy. Nos. 118 and 126 were concerned. As far as the land bearing Sy. No. 104, the learned Single Judge has held that the Tribunal-has totally granted 2 acres and 22 guntas of land to petitioners 1 and 2, whereas their names were found in respect of only 2 acres of land. The contention urged by the writ petitioners stating that respondents 3 to 9 were only trespassers was repelled holding that the combined reading of the provisions contained in Sections 45 and 49 of the Act, did not leave any doubt that even a sub-tenant was also entitled for grant of occupancy rights. The learned Single Judge found support for this view from the judgment in the case of Narasimha Jayadevarao v Land Tribunal, Sirsi Taluk, Uttara Kannada District and Others1. Thus, the contentions urged by the writ petitioners have been negatived. 5. Sri B.M. Krishna Bhat, learned Counsel for the appellants contends before us that as there was no sub-lease created prior to 2-10-1965, the Tribunal erred in granting occupancy rights holding that respondents 3 to 9 were the sub-tenants. He next contended that as per Section 5 of the Act, no tenancy could be created after 2-10-1965. It is his submission that even if it is assumed that the name of the respondents was found in the record of rights for the years 1971-72, they will not get any right to seek occupancy rights. In this regard, he has placed reliance on the judgments in the case of Bakilana Chinnappa v Land Tribunal, Mercara Taluk and Others2 and in the case of Beera Aayu Agera v Land Tribunal, Ankola, Uttara Kannada District and Others3. He has also placed reliance on the following judgments: (i) Vimal Appayya Markal v The Land Tribunal, Belgaum and Others1; (ii) Timmakka Kom Venkanna Naik v The Land Tribunal and Others2; (iii) Sangappa Kalyanappa Bangi (dead) through L.Rs v Land Tribunal, Jamkhandi and Others3; and (iv) Sugandhabai v Tanaji4. He has invited our attention to Sections 21, 45, 46 and 49 of the Act. 6. He has invited our attention to Sections 21, 45, 46 and 49 of the Act. 6. Sri Shashikiran Shetty, learned Counsel appearing for respondents 3, 12 to 15, 20 and 22 has strongly supported the order passed by the Land Tribunal as affirmed by the learned Single Judge. 7. Having heard the learned Counsel for both parties and on careful perusal of the entire materials on record, we find that, admittedly respondents 3 to 9 herein have claimed occupancy rights contending that they were sub-tenants under the father of the petitioners. Though they have not stated in clear terms as to from which year they have been sub-tenants, they have asserted that they have been cultivating the land for the last 40 years. Counsel for the respondents contends that it is sufficient for them to show that they were cultivating the land as subtenants immediately prior to the appointed date viz., 1-3-1974. At any rate, it is urged that the sub-tenancy has originated prior to 2-10-1965. 8. The learned Single Judge has not considered the question whether lawful sub-tenancy could have been created after 2-10-1965. He has also not recorded a finding as to whether the respondents herein were sub-tenants prior to 2-10-1965. But, he has proceeded on the basis of Section 49 of the Act and taking support from the judgment in Narasimha Jayadevarao's case. Section 49 of the Act reads as under: "49. Sub-tenants or tenants to be registered as occupants.-Where a tenant has lawfully sub-let the land held by him, such sub-tenant of the land, shall, to the exclusion of the tenant, to the extent and subject to the conditions specified in Sections 45 and 46 be entitled to be registered as occupant of the land of which he was a sub-tenant before the date of vesting". 9. It is important to note from Section 49 of the Act that only in cases where a tenant has lawfully sub-let the land held by him, such sub-tenant will be entitled for registration of occupancy rights of which he was a sub-tenant before the date of vesting. At this state, it is very relevant to notice the provisions contained under Section 21 of the Act, which prohibit sub-letting and assignment of lands. The said provision reads as under: "21. At this state, it is very relevant to notice the provisions contained under Section 21 of the Act, which prohibit sub-letting and assignment of lands. The said provision reads as under: "21. Sub-division, sub-letting and assignment prohibited.-(1) No sub-division or sub-letting of the land held by a tenant or assignment of any interest therein shall be valid: Provided that nothing in this sub-section shall affect the rights, if any, of a permanent tenant: Provided further that if the tenant dies.- (i) if he is a member of joint family, the surviving members of the said family; and (ii) if he is not a member of a joint family, his heirs shall be entitled to partition and sub-divide the land leased, subject to the following conditions.- (a) each sharer shall hold his share as a separate tenant; (b) the rent payable in respect of the land leased shall be apportioned among the sharers, as the case may be, according to the share allotted to them; (c) the area allotted to each sharer shall not be less than a fragment; (d) if such area is less than a fragment the sharers shall be entitled to enjoy the income jointly, but the land shall not be divided by metes and bounds; (e) if any question arises regarding the apportionment of the rent payable by the sharer it shall be decided by the Tahsildar: Provided that if any question of law is involved the Tahsildar shall refer it to the Court. On receipt of such reference the Court shall, after giving notice to the parties concerned, try the question as expeditiously as possible and record finding thereon and send the same to the Tahsildar. The Tahsildar shall then given the decision in accordance with the said finding. (2) Notwithstanding anything contained in sub-section (1), it shall be lawful for a tenant who is a soldier in service in the Armed forces of the Union or a seaman to sub-let the land held by him as a tenant. The Tahsildar shall then given the decision in accordance with the said finding. (2) Notwithstanding anything contained in sub-section (1), it shall be lawful for a tenant who is a soldier in service in the Armed forces of the Union or a seaman to sub-let the land held by him as a tenant. (3) Notwithstanding anything contained in sub-section (1), it shall be lawful for a tenant to take a loan and mortgage or create a charge on his interest in the land in favour of the State Government, [a financial institution, a co-operative land development Bank, a co-operative society], a company as defined in Section 3 of the Companies Act, 1956 in which not less than fifty-one per cent of the paid up share capital is held by the State Government or a Corporation owned or controlled by the Central Government or the State Government or both, for development of land or improvement of agricultural practices; and without prejudice to any other remedy provided by any law, in the event of his making default in payment of such loan in accordance with the terms and conditions on which such loan was granted, it shall be lawful to cause his interest in the land to be attached and sold and the proceeds to be utilised in payment of such loan". 10. It is thus clear from the provision contained in Section 21 that, a bar is enacted for sub-letting the land held by any tenant except by a permanent tenant. The proviso and the succeeding sub-sections save assignment by way of partition and by certain other categories of tenants like a soldier, seaman or in respect of certain transactions of loan or mortgage executed in favour of State Government or some companies or co-operative societies. Section 21 is in the statute book and has come into force with effect from 2-10-1965. Therefore, it is clear that, the prohibition for sub-letting the land is in existence since 2-10-1965. If that be so, unless it is established that the predecessor-in-title of the writ petitioners were permanent tenants of the lands in question, they could not have sub-let the lands after 2-10-1965. The facts as pleaded do not make the proviso to sub-section (1) of Section 21 applicable to the present case. However, no opinion need be expressed in this regard at this stage. The facts as pleaded do not make the proviso to sub-section (1) of Section 21 applicable to the present case. However, no opinion need be expressed in this regard at this stage. It has to be therefore, noted that if sub-tenancy is created after 2-10-1965, it cannot be regarded as lawful in view of the prohibition enacted under Section 21. 11. Section 4 of the Act which deals with deemed tenants will also not take in its fold a sub-tenant who is inducted contrary to Section 21. 12. In the case of Timmakka Kom Venkanna Naik, on which reliance is placed by the appellants, the provisions contained under Section 21(1) of the Act came up for consideration. The question that arose was whether a tenant could bequeath his right of tenancy in favour of a third party under a Will. This Court having considered the effect of Section 45 and Section 21(1) of the Act has held in paragraph 12 that a tenant cannot assign his rights in the land to any other person in view of the bar enacted under Section 21 for sub-division or sub-letting of the land held by him. It is held that the bar cannot be overcome by a tenant even by creating a Will because what he cannot do during his lifetime cannot be held to be capable of being done immediately after his death. Likewise, in the case of Sangappa Kalyanappa Bangi, explaining the effect of Section 21 of the Act, the Apex Court held that the assignment of any interest in the tenanted land by a tenant even by way of bequest under a Will cannot be held to be valid. In the case of Beera Aayu Agera, learned Single Judge of this Court has held that under Section 45(1) of the Act a person claiming occupancy on the ground of being a sub-tenant can succeed only if he is able to show that the sub-letting in his favour was prior to 2-10-1965. It is further held that if the sub-tenancy rights were acquired after the coming into force of the provisions of the Act, the said sub-tenancy was hit by the provisions of Section 21 which prohibited sub-letting. In our view, the proposition of law regarding the prohibition of sub-lease as enacted under Section 21(1) with effect from 2-10-1965 is rightly laid down in this decision. 13. In our view, the proposition of law regarding the prohibition of sub-lease as enacted under Section 21(1) with effect from 2-10-1965 is rightly laid down in this decision. 13. In the instant case, the learned Single Judge has not noticed the effect of Section 21. Reliance placed by the learned Single Judge on the decision in the case of Narasimha Jayadevarao, is not apposite to the facts of the present case. In the said case, the effect of the provisions contained under Section 21(1) of the Act is not considered. The observations made therein to the effect that all that was required to be considered was as to whether the sub-tenant was cultivating the land as on 1-3-1974 or immediately prior thereto, are the result of non-consideration of the bar for sub-lease under Section 21(1) of the Act and therefore the learned Single Judge erred in placing reliance on the said judgment and in proceeding on the basis of the provisions of Section 49 without noticing the provisions contained under Section 21(1) of the Act. 14. Insofar as the contention urged by the Counsel for the appellants on the basis of the judgment in the case of Bakilana Chinnappa, that as per Section 5 of the Act, no tenancy can be created after 2-10-1965, it has to be stated that Section 5 is substituted by the Amendment Act, Act No.1 of 1974 with effect from 10-3-1974. The prohibition for creation of lease as per Section 5 as substituted by the Amendment Act of 1974 stipulates that no tenancy shall be created or continued in respect of any land nor shall any land be leased for any period after the date of commencement of the Amendment Act except as provided in the Act. Therefore, it is clear that the bar enacted for the creation of tenancy is with effect from the date of commencement of the Amendment Act i.e., with effect from 1-3-1974. Therefore, it is clear that the bar enacted for the creation of tenancy is with effect from the date of commencement of the Amendment Act i.e., with effect from 1-3-1974. Though there was similar provision in the unamended Section 5 as enacted by the Karnataka Land Reforms Act, 1961, in view of the substitution of new Section 5 making it clear that no tenancy shall be created after the date of commencement of the Amendment Act read along with the definition of the term 'tenant', under Section 2(A)(34) of the Act and coupled with Sections 45 and 44 of the Act, it is clear that even a tenant who is inducted as such after 2-10-1965 and immediately prior to 1-3-1974 is entitled for grant of occupancy rights. In fact, the definition clause under Section 2(A)(34) of the Act includes as per sub-clause (ii-a) a person who cultivates personally any land on lease created contrary to the provisions of Section 5 and before the date of commencement of the Amendment Act. It is thus clear, that the contention urged by the Counsel for the appellants that no tenancy can be created after 2-10-1965 as per Section 5 is misconceived. At any rate, in this case, we are not concerned with the creation of tenancy after 2-10-1965. We are concerned with the creation of sub-tenancy. As already held by us, no sub-tenancy can be created after 2-10-1965 except as permitted and provided by proviso to sub-section (1) of Section 21 in view of the prohibition contained under Section 21(1) of the Act. 15. In the instant case, the Tribunal has not gone into the question when the sub-tenancy was created in favour of respondents 3 to 9. It has simply held that as respondents 3 to 9 were found to be sub-tenants as or 1-3-1974 they were entitled for grant of occupancy rights. The Tribunal ought to have recorded a finding as to whether the sub-tenancy was created prior to 2-10-1965. In the absence of such a finding, the order passed by the Tribunal cannot be sustained. 16. In the light of the above discussion, we are of the view that these appeals deserve to be allowed. Accordingly, we pass the following: ORDER (i) The writ appeals are allowed. The order pas see by the learned Single Judge is set aside. In the absence of such a finding, the order passed by the Tribunal cannot be sustained. 16. In the light of the above discussion, we are of the view that these appeals deserve to be allowed. Accordingly, we pass the following: ORDER (i) The writ appeals are allowed. The order pas see by the learned Single Judge is set aside. (ii) The writ petition is allowed by setting aside the order dated 19-5-2007 passed by the Land Tribunal impugned in the writ petition insofar as it relates to the grant of occupancy rights in favour of respondents 3 to 9. (iii) The matter is remitted to the Tribunal for fresh consideration in accordance with law and in the light of the observations made herein above.