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2015 DIGILAW 1076 (KAR)

KALAGONDADHA BASAVANNAPPA v. STATE OF KARNATAKA

2015-09-10

K.N.PHANEENDRA

body2015
ORDER : 1. Petitioner No. 1 is the legal representative of original owner of the land by name Eerappa. Petitioner No.2Basavanneppa Shivamurthappa Nandigavi is the subsequent purchaser of the land bearing Sy. No 24/1 measuring 1 acre 38 guntas of Lingadevarakoppa village filed this writ petition calling in question the order passed by the Land Tribunal, Hirekerur, Haveri District, vide order dated 17.07.2002 in No. VLR.SR.21 in granting occupancy rights in respect of the said survey number in favour of the deceased third respondent. During the pendency of the writ petition, 2nd petitioner as well as respondent no.3 died and their legal representatives were also brought on record. During the pendency of the writ petition, on 22.07.2008 petitioner no.1 has filed an application under Order I Rule 10(2) of CPC for impleading petitioner no.2 as respondent no.4. The said application was allowed on 06.11.2013. Respondent no.4 has filed an application on 12.12.2013 for transposing himself as petitioner no.2. On the same day this Court allowed the said application. Respondents have also filed their additional statement of objections in lieu of the said transposition of petitioner no.2 to the petition. Respondent no. 3(ac) have also filed writ appeal in W.A. No. 100101/2014 being aggrieved by the order dated 12.12.2013 in transposing the respondent no.4 as petitioner no.2. The writ appeal was dismissed with the observation that the respondent nos.3(ac) can file appropriate statement of objections in the writ petition. Petitioner no.1 during the pendency of the proceedings before the Tribunal has sold the property in favour of petitioner no.2 on 17.11.1999. Therefore, he claims the said property as owner in view of the said transaction. 2. It is the case of the petitioners that deceased respondent no.3Veerabhadrappa Veerappa Kavali, during his lifetime was cultivating the land in question upto 27.09.1966. Thereafter, respondent no.3 has surrendered the said land in question on 27.09.1966 in S.L.C. No. 732/1966 and the Court of Principal Civil Judge has permitted respondent no.3 to surrender the land and permitted the land owner Kalagondadha Basavannappa to enter upon the land in question. 3. It is the further case of the petitioners that landlord entered into the possession of the said property and cultivating the said land from 1966 itself and mutation was also accepted in the name of the landlord on 30.01.1975. 3. It is the further case of the petitioners that landlord entered into the possession of the said property and cultivating the said land from 1966 itself and mutation was also accepted in the name of the landlord on 30.01.1975. But, subsequently in the year 1978 deceased respondent no.3 had filed Form No. 7 claiming occupancy rights over the said land on the ground that he continued to be in possession and enjoyment of the said land as a tenant. The Land Tribunal at the first instance after hearing the parties in detail rejected the claim of the deceased respondent no.3 vide order dated 04.11.1981. 4. Questioning the said order, respondent no.3 approached this Court in W.P. No. 9376/1984. This Court remanded the matter to the Land Tribunal for fresh enquiry vide order dated 03.06.1986. Once again after hearing the parties in detail and looking into the records and also considering the surrender of the land in question in favour of the petitioners, the Tribunal again rejected the claim of the respondent no.3 vide order dated 26.11.1988. Respondent no.3 being aggrieved by the said order again challenged the said order before this Court in W.P. No. 20012/1992. Once again vide order dated 17.04.1996 this Court allowed the writ petition and remanded the matter to the Land Tribunal with a specific direction to consider the effect of surrender of the land in question by the respondent no.3 and also following the provisions of Section 44 and 45 and also Rule 19 of the Land Reforms Act and Rules respectively. The Land Tribunal once again conducted the enquiry and granted occupancy rights in favour of the respondent no.3 vide its order dated 17.07.2002 which is under challenge in this writ petition by the petitioners. 5. It is contended by the petitioners’ counsel before this Court that in the year 1966 itself the land was surrendered vide S.L.C. No. 732/1996 before the Judicial Court and the tenancy came to an end and the relationship of landlord and tenant has been terminated. In pursuance of the said order, mutation was also accepted and the land owner continued in possession and enjoyment of the said property as absolute owner and the tenant never entered into the land by taking possession of the property as per Section 7 of the Land Reforms Act and he never enjoyed the property as a tenant from 1966 onwards. Therefore, the Tribunal has committed a serious error in not properly appreciating the above said legal aspects. 6. Learned counsel for the petitioners further argued before this Court that the 1st petitioner was a Teacher and he cannot cultivate the land as a tenant because, personal occupation and cultivation of the land is a sinequenon for granting of occupancy rights. Therefore, neither the land vests with the Government as on the appointed date nor the respondent no.3 or anybody cultivated the land as tenant. Therefore, the order of the Land Tribunal is illegal and the same is against to the facts, law and circumstances of the case and the same is liable to be interfered by this court. 7. Per contra, Sri.K.L. Patil, learned counsel for the respondents strenuously argued before the Court that surrender of the land alleged itself was illegal and it is not in compliance with Section 25 of the Old Mysore Land Reforms Act and there was no delivery of possession, even assuming the said surrender was before the Court. No revenue records are in the name of the 1st petitioner as on the appointed date. Section 44 of the Karnataka Land Reforms Act says that inspite of any decree, eviction, resumption, if the tenant continues to be in possession of the property, then the Land Tribunal gets jurisdiction to grant occupancy rights. The R.T.C. extracts show that the land vests with the Government and mutation was also accepted showing that the said land was in the name of the Government. Section 7 of the land Reforms Act is not applicable because there is no proof before the Court that the tenant was dispossessed at any point of time. 8. It is further argued that the tribunal has recorded statement of the owner as well as the tenant and after considering the admission on the part of the owner that the tenant continued in possession of the property and only left the property in the year 1979 shows that the tenant never went out from the land and he continued to be in possession of the land on the appointed date, therefore granted the occupancy rights. 9. Learned counsel also contended that, in the year 1999 itself when the matter was pending before the Land Tribunal, the land was sold in favour of the second petitioner. 9. Learned counsel also contended that, in the year 1999 itself when the matter was pending before the Land Tribunal, the land was sold in favour of the second petitioner. Therefore, the owner has lost all his rights, title and interest over the property and he has no right to challenge the order of the Land Tribunal. Moreover, the respondent no.2 is also not entitled to challenge the said order as there was no relationship between the second petitioner who is the subsequent purchaser and the respondent no.3 herein. Considering all the surrounding circumstances, the Land Tribunal has properly appreciated and correctly granted occupancy rights in favour of the respondent no.3. Therefore, it does not call for any interference at the hands of this Court. 10. On hearing both the parties it is just and necessary for this Court to find out “whether the order of the Land Tribunal in granting occupancy rights in favour of respondent no.3 is valid, proper and the same is in accordance with law or not.” 11. As admitted by both the parties, i.e., the erstwhile owner of the property and also the tenant of the property, that respondent no.3 was inducted as tenant by the land owner and according to the land owner himself the tenant was in possession upto 1966. The main contention between the parties is that the said land was surrendered in the year 1966, the Court has to see what is the effect of such surrender, whether the said surrender was actually acted upon and actual possession of the property was delivered by the tenant in favour of the owner and what is the effect, if the tenant has been continued in possession of the property, whether his possession can be termed as ‘possession of a tenant.’ 12. Before considering the rival points raised, first let me glance the rulings relied upon by the parties. 13. Learned counsel for the petitioner in this regard relied upon a ruling of the Apex Court which is reported in AIR 2009 SC 2515 (V.G. Shankaranarayana Bhat Vs. Girija (D) by LRs. & Anr.), wherein the Hon’ble Apex Court dealing with the surrender of the land has held that: “The status of ‘J’ was that of the tenant on the basis of a rent note dated 5.11.1961. Girija (D) by LRs. & Anr.), wherein the Hon’ble Apex Court dealing with the surrender of the land has held that: “The status of ‘J’ was that of the tenant on the basis of a rent note dated 5.11.1961. This status was surrendered by ‘J’ finally on order dated 5.3.1968 from the Land Tribunal and that order remained intact. The said order not challenged by anyone including predecessor in interest of respondent. Appellate Tribunal as well as the High Court has gone into correctness of the order though it was not in challenge before them. The finding held to be without jurisdiction. Even if the findings arrived by the High Court that ‘L’ was cultivating the property is justified, that is not sufficient to confer upon her right of a tenant as her possession was not that of a tenant. ‘L’ and thereafter her daughter ‘G’ do not have any rights and could not have been given the status of occupancy tenants.” The Hon’ble Apex Court at paragraph no. 12 held as under: “It cannot be forgotten that the surrender was done before a judicial authority as per the provisions of the Act and that surrender remained intact till today. In para 23, the Land Reforms Appellate Authority has also given a very strange finding that the land was tenanted to an undivided family and, therefore, all the family members had to jointly surrender the land and it was not permissible for one member of the family to surrender the land. In this case, the Land Reforms Appellate Authority has completely ignored the fact that on 05.11.1961, i.e., after Kariyappa’s death, there was an independent rent note, creating the tenancy in Jinnappa Gowda alone and not in favour of Lakshmi” It is also observed by the Apex Court that, “The High Court has also gone on to comment on the unchallenged order dated 5.3.1968, (surrender), which undoubtedly had the effect of bringing the tenancy into end. At any rate, that order could not have been commnted upon, particularly, when it was passed by Munsif and particularly, it was not in challenge in the High Court in any manner.” Ultimately, the Court observed that: “In our opinion, even if the finding arrived at by the High Court in para no. At any rate, that order could not have been commnted upon, particularly, when it was passed by Munsif and particularly, it was not in challenge in the High Court in any manner.” Ultimately, the Court observed that: “In our opinion, even if the finding arrived at by the High Court in para no. 16 of the judgment that Laxmi was cultivating the property is justified, that is not sufficient to confer upon her right of a tenant as her possession was not that of a tenant.” 14. In view of the above said decision, it is made it clear that the order of surrender cannot be commented upon by the Court if it was not challenged before the Court. But, what is to be observed in this case is that the tenancy was not claimed by the original tenant but by some other person by name Laxmi. Therefore, the Court has observed that her possession cannot be called as a possession as that of a tenant. But, in this particular case the original tenant himself claims that he continued to be in possession of the property and he denies surrender of the said land in the year 1966. Assuming that the said surrender was valid, the question remains that, whether the tenant was continued to be in possession of the property and whether there existed any relationship as that of a landlord and tenant, is to be ascertained. 15. In another ruling relied upon by the petitioners’ counsel is reported in 2008 SAR (civil) 627 (Arun Kumar Vs. State of Karnataka and Anr.) wherein the Hon’ble Apex Court has observed that: “Appellant is the owner of suit property. Land was under the tenancy of respondent who had surrendered both the suit properties. Mutation entries are in favour of the appellant. However, due to inadvertence when order was passed, survey no. 106 was not recorded. Taking advantage of the said order, respondent filed application for grant of occupancy right. Appellate Authority recorded the findings that there has been valid surrender. The Hon’ble Apex Court has further observed at paragraph no. 11 that: “11. The effect of surrender of tenancy was considered by this Court in ( AIR 1969 SC 1190 ) and Ramachandra Keshav Adke (dead) by Lrs. V. Govind Joti Chavare and Ors. { (1975) 1 SCC 559 ). The Hon’ble Apex Court has further observed at paragraph no. 11 that: “11. The effect of surrender of tenancy was considered by this Court in ( AIR 1969 SC 1190 ) and Ramachandra Keshav Adke (dead) by Lrs. V. Govind Joti Chavare and Ors. { (1975) 1 SCC 559 ). In the latter case it was, inter alia, held that the tenancy of such surrender comes to an end and the rights arising out of that relationship terminated. A surrender of tenancy can be only valid and binding on him if it was in writing and was verified by Mamltdar whose duty is to ascertain whether surrender was voluntarily and was not under any pressure or undue influence of the landlord.” 16. The petitioners counsel has also relied upon the decision of this Court reported in 1979 (2) KLJ 167 (Nanjunda Bhatta S.V. Vs. State of Karnataka and Ors.) wherein this Court has observed that, “Karnataka Land Reforms Act, 1961surrender of the land and tenant not in possession on 01.03.1974. Where the tenant voluntarily surrendered his tenancy right in 1962 and since then the owner was in possession and cultivating personally, the land is not a tenanted land and as the tenant was not in possession of it as a tenant either on 1.3.74 or immediately prior to that date, the provisions of the Act do not apply. It was further observed that: “Since a tenant claimant was out of possession immediately prior to the commencement of the Amendment Act, he is not entitled to be registered under Section 45 of the Act, if he was aggrieved by the surrender and dispossession thereunder, his remedy is under S. 7 of the Act for resteration and then approach the Tribunal for relief.” 17. The above said two decisions makes it amply clear that after the surrender of the land, if possession of the property has been delivered to the landlord and the tenant is out of possession of the said land, then only, tenancy will be terminated in accordance with law. If the tenant was dispossessed immediately prior to the appointed date unless he gets restoration of the possession of the land he has no right to file application under Form No. 7 for grant of occupancy rights. From meaningful understanding of the above said decisions it is clear that possession of the property after surrender play a dominant role. If the tenant was dispossessed immediately prior to the appointed date unless he gets restoration of the possession of the land he has no right to file application under Form No. 7 for grant of occupancy rights. From meaningful understanding of the above said decisions it is clear that possession of the property after surrender play a dominant role. However, the question of surrender being recorded by the judicial Court cannot be questioned before this Court in the petition filed either by the landlord or the tenant and the Court cannot give any finding with regard to the genuinety and validity of the said order. Therefore, I am also reluctant to consider whether the said surrender was valid and it was voluntarily or whether it was due to any undue influence. The presumption is to be drawn so far as the judicial proceedings are concerned. Unless it is shown to the Court that the said judicial order was without jurisdiction, the Court has to rely upon the said document. 18. In this background now let me consider the decisions relied upon by the respondent No.3 with regard to the same factum of surrender of the lands and what is the effect of the surrender if possession is not delivered as on the date of the surrender. Thereafter, I will consider the facts, whether there was any possession delivered and taken over by the landlord over the said land, after understanding the rulings relied upon. 19. In a case law reported in ILR (KAR)-1980-1-10 (Puttegowda Vs. State of Karnataka), this Court observed at paragraph that: 3. Aggrieved by this order, the landlords contended inter alia before the learned single Judge that: (1) the order of the Tahsildar (Exhibit-B) determined the relationship of landlord and tenant between the appellant and respondent 3; (2) there was actual surrender by the appellant pursuant to Exhibit-B and even otherwise the appellant was a trespasser being a tenant at sufferance and therefore he was not a tenant entitled to occupancy rights; and (3) the finding of the Land Tribunal was vitiated by non-consideration of the presumption arising under Section 133 of the Karnataka Land Revenue Act from the entries in the record of rights extract (ExhibitJ filed with the writ petition). These contentions found favour with the learned single Judge and he allowed the petition of the landlords. Hence this tenant's appeal. These contentions found favour with the learned single Judge and he allowed the petition of the landlords. Hence this tenant's appeal. We will first deal with contentions Nos. 2 and 3 since they rest on the factual appreciation of the evidence on record. On the question of possession by the appellant of the land in dispute, notwithstanding the order permitting surrender, the finding of fact recorded by the Tribunal that the appellant was in possession even after such order, is well sustained by his unimpeachable evidence. The further finding of the Tribunal that the affidavit of the appellant in support of the application for permission to surrender, was given by him at the landlords' insistence and that there was no surrender as such, is also not open to challenge. We may notice that the landlords also initiated the resumption proceedings under Section 14 of the Act as it stood then. The case of the landlords is that in that proceedings an application for permission to surrender under Section 25 of the Act, was made by the appellant duly supported by an affidavit. Resumption and surrender are proceedings different from each 'other under different sections of the Act. The appellant's case in this Court was that he did not receive any notice from the then Land Tribunal apparently meaning that there was no notice of resumption proceedings but all the same Siddappa, the original landlord, took his affidavit by falsely representing that he would be getting the land for himself. The affidavit (produced as ExhibitA in the writ petition) is in English and it is not the cue Of the landlords that the appellant was conversant with English, Nor is there any endorsement in the affidavit to the effect that its contents had been duly translated in the language known to the appellant andread to him. Hence the finding of the Tribunal that the appellant had not acted on the permission to surrender by delivering possession of the land to the landlords, appears to be well founded and the evidence on record in support of this finding effectively rebuts the presumption arising from the entries in ExhibitJ under Section 133 of the Act. Further the contradictions in the evidence of the landlords’ witnesses regarding cultivation of the lands by the landlords after the alleged surrender by the appellant, throw serious doubt about the genuineness of these entries. (emphasis supplied) 20. Further the contradictions in the evidence of the landlords’ witnesses regarding cultivation of the lands by the landlords after the alleged surrender by the appellant, throw serious doubt about the genuineness of these entries. (emphasis supplied) 20. On reading of the above decision it is crystal clear that unless actual surrender coupled with possession is proved, mere surrender on the paper would not come to the help of the owner of the property. The Court has to consider the materials on record to come to the conclusion whether the surrender was effective from the date on which the alleged surrender has been made by the tenant. Though the order of the surrender cannot be questioned in these proceedings but nevertheless the Court is well within its power to consider whether the said surrender order was actually acted upon and possession has been taken over by the land owner. 21. In another ruling reported in 2000 (4) Kar. L.J. 307 (Venkataramanappa Vs. B.N. Narashimhachar and another), this Court has held with regard to the surrender of land that: “From the reading of subsection (1) of Section 25, it is abundantly clear that a right is given to the tenant to terminate the tenancy of any land held by him at any time by surrender of his interest therein in favour of the landlord but the said surrender shall not be effective unless it is made in writing and is admitted by the tenant before the Tribunal and is made in good faith to the satisfaction of the Tribunal and is registered in the office of the Tribunal in the prescribed manner. Therefore, mere executing a document in favour of the landlord is not sufficient. In this case, as stated above, execution of Ex. R. 7 was not before the Tribunal and there is no finding that it was made in good faith and was satisfied regarding the genuineness. Except that he has executed Ex. R. 7 and as stated by R.W. 3 in this case, there is no other evidence to establish Ex. R. 7. Therefore, this document cannot be construed to be the one executed in compliance and to the satisfaction of Section 25(1) of the Act.” At paragraph no. Except that he has executed Ex. R. 7 and as stated by R.W. 3 in this case, there is no other evidence to establish Ex. R. 7. Therefore, this document cannot be construed to be the one executed in compliance and to the satisfaction of Section 25(1) of the Act.” At paragraph no. 9 of the said judgment it is further observed that: “The tenant is deemed to be in possession of the property if the alleged surrender has not been acted upon in accordance with law and such being the case it was the responsibility of the respondent (owner) to establish that the tenant was dispossessed and owner has to come to the possession of the property in order to make the tenant to claim restoration of the possession under Section 7 of the Act.” 22. The above said decision also makes it abundantly clear that mere execution of the surrender deed is not sufficient unless it is followed by actual taking of possession by the owner of the property. If possession is not proved to be taken by the landlord immediately after the surrender or within reasonable time, it can be construed that the tenant continued to be in possession of the property. 23. In another ruling which is reported in SCC-1997-3-593 (STATE OF KARNATAKA VS. UPPEGOUDA) wherein the Hon’ble Apex Court considering the object of the Tenancy Act has laid down certain principles in the following manner: “The object of the Tenancy Act is to protect the tenants to remain in possession and enjoy it subject to compliance of the provisions of the Tenancy Act. Contracted tenancy comes to an end and statutory tenancy sets in operation and so he would be liable for ejectment only on proved grounds of statutory contravention, the entries of revenue records are self serving. There was no order of a competent authority of eviction of tenant for contravention of the above mentioned grounds. The proviso, though enables a landlord to obtain possession on surrender, it must be proved strictly, as several devices would be used to circumvent the beneficial provision and illiteracy and ignorance of the tenant would be taken advantage of. There is no proof of eviction of the tenant. The stand taken by landlord is not supported by legal setting.” 24. The proviso, though enables a landlord to obtain possession on surrender, it must be proved strictly, as several devices would be used to circumvent the beneficial provision and illiteracy and ignorance of the tenant would be taken advantage of. There is no proof of eviction of the tenant. The stand taken by landlord is not supported by legal setting.” 24. The above said rulings cited by both the parties makes it clear that the tenant is very well within his power to surrender the land in accordance with law by executing any document either in favour of the landlord or before any Court of law that itself would not suffice to complete the surrender. The surrender itself presupposes that possession of the tenant by the tenant and in the capacity of tenant was delivered back in favour of the landlord. Therefore, unless by virtue of surrender order if voluntarily without any force and undue influence, coercion if the tenant himself delivers possession of the property in favour of the landlord or in other way the ladlord by virtue of the order of surrender takes over possession of the property by any legal means, then only it can be said that the surrender is complete. The doubt arises as to whether after such surrender, if the person continues to be in possession of the property, such possession can be construed as an illegal possession of the tenant, because of the reason that the tenant has surrendered the land, and he has no right to continue in possession of the said land. This aspect also deserves to be answered in favour of the tenant holding that unless his surrender is valid and accompanied by delivery of possession by the tenant, the relationship would not come to an end and the acceptance of possession and delivery of possession are essential to effect the surrender. If it is not done so in accordance with law and if the tenant continues to be in possession, he can safely construed as a tenant continued in possession of the property. Therefore, the above said principles have to be applied on the basis of facts and circumstances of the case and on the materials on record. The Court has to find out whether delivery of possession had been given to the owner as on the date of surrender or within reasonable time. 25. Therefore, the above said principles have to be applied on the basis of facts and circumstances of the case and on the materials on record. The Court has to find out whether delivery of possession had been given to the owner as on the date of surrender or within reasonable time. 25. The records placed before the Land Tribunal clearly disclose that the tenant himself has made an application before the Court of Principal Munsiff and First Addl. JMFC, Ranebennur under Section 25 of the Mysore Land Reforms Act, 1961, wherein the Court has passed an order on 24.10.1966 that: “Application is allowed. Opponent is permitted to enter upon the said lands. W.P. to be issued to the parties.” Except the above order nothing has been mentioned in the order. Further, the tenant has not stated as to prior to or on the date of the said order, he has voluntarily delivered possession of the said property in favour of the landlord by virtue of his intention to surrender. The said order also disclose that the opponent, i.e., the landlord was permitted to enter upon the land. It shows that, by virtue of the said order the landlord has to make all his efforts to enter into the land or if he failed to enter into the land, he must make an application to the Court to enforce the order for taking delivery of the possession of the property. Mere reading of this particular document, it does not show that the owner has entered into possession of the property or the tenant has delivered possession of the property in favour of the landlord (surrender order is available at page no. 51 of the records of the Land Tribunal). 26. The R.T.C. extracts placed before the Land Tribunal, which are available at pages 63 to 65 of the records, show that, as per the mutation order No. 742 land vests with the Government and thereafter the name of Basavanneppa was entered as per the mutation entry no. 745. These documents and R.T.C. extracts show that the disputed land in sy. No. 24/1 from the year 1966-67 onwards also up to 197475 continued to be in the name of the tenant for more than a period of 9 years even after the alleged surrender. 745. These documents and R.T.C. extracts show that the disputed land in sy. No. 24/1 from the year 1966-67 onwards also up to 197475 continued to be in the name of the tenant for more than a period of 9 years even after the alleged surrender. In the year 1975 under M.E. No. 745 dated 30.01.1975 the mutation was accepted in the name of the landlord by mentioning that, by virtue of surrender in SLC 732/66 dated 27.09.1966 name of the tenant has been reduced in the R.T.C. It shows that, from the date of alleged surrender or immediately after within reasonable time, no effort has been made by the landlord to get the R.T.C. entries changed into their name and further except producing the surrender order, no other materials are produced before the Court to show that the owner has actually taken possession of the property. On the other hand, the RTC extract show that the tenant has continued to be in possession and enjoyment of the said property upto 30.01.1975. 27. In this background the oral evidence of the parties also play an important role. Before adverting to the oral evidence, it is to be borne in mind the provision u/S 133 of the Karnataka land Revenue Act, which raises a presumption with regard to the entries in the R.T.C. extracts that is the tenant continued to be in possession of the property, as the nature of cultivation shown in column no. 12(3) is No. 3, that means, the cultivation by tenant. From 197576 it shown as No. 1 at column no. 12(3) which shows that the landlord cultivated the land on his own. The presumption can be raised u/S 133 of the Act by virtue of the R.T.C. extracts that the tenant has continued in possession and enjoyment of the property as a tenant. Unless the said presumption is rebutted, the owner cannot claim that the relationship of landlord and tenant had extinguished. In this background the evidence of the parties play a dominant role. 28. Learned counsel for the petitioner argued that even in the year 1981, on 04.11.1981 the tenant himself has stated before the Land Tribunal that he has delivered possession of the property about three years prior to his statement. Therefore, on 04.11.1981 he was not in possession of the property. The said statement of the tenant is available at page no. Learned counsel for the petitioner argued that even in the year 1981, on 04.11.1981 the tenant himself has stated before the Land Tribunal that he has delivered possession of the property about three years prior to his statement. Therefore, on 04.11.1981 he was not in possession of the property. The said statement of the tenant is available at page no. 79 (page number written in red ink) of the Land Tribunal records. This particular statement has not been subjected to crossexamination. This was recorded by the Chairman (Land Tribunal) on 04.11.1981 wherein according to the petitioners the tenant has stated that he has left the cultivation of the said land three years prior to his statement. That gives an indication when the statement was recorded on 04.11.1981 he must have left cultivation in the year 1979. It also fortifies entries in the R.T.C. extracts from 1966 to 1979. That shows even after surrender the tenant has continued in possession of the property up to 1979. Even for a moment admitting his statement as true but the Tribunal has to see as to who was in possession of the property as on the appointed date, that was on 01.03.1974. It clearly disclose that, as on 01.03.1974 the tenant was shown to be in possession of the property, Further, after remand of the case, the statements of the witnesses have been recorded afresh and they were subjected to crossexamination. On 25.11.1988 at page no. 141 and 143, the statements of the witnesses are available. 29. The tenant has consistently stated that since 1955 he has been in possession and enjoyment of the property as a tenant and he denied having given any statements before the Ranebennur Munsiff Court for having surrendered the land and he has stated that though he continued to be in possession of the property his name had been reduced in the year 1975. 30. One Mr. Basappa Yallappa Kalagond has stated that the disputed land being cultivated by him personally right from the beginning. At no point of time the tenant was in possession and enjoyment of the property. He says that his ancestors were in possession and enjoyment of the land. This statement of the owner is quite contrary to the stand taken by him. Basappa Yallappa Kalagond has stated that the disputed land being cultivated by him personally right from the beginning. At no point of time the tenant was in possession and enjoyment of the property. He says that his ancestors were in possession and enjoyment of the land. This statement of the owner is quite contrary to the stand taken by him. According to the owner the tenant continued to be in possession up to 1966, till he surrendered the said land, but in his evidence he says that at no point of time, tenant was in possession of the property. Except this statement and counter statement nothing has been produced before the Court by the landlord to establish that, after surrender he actually taken possession of the property at any point of time. Therefore, mere oral evidence will not substitute the presumption raised u/S 133 of the Land Revenue Act, and it cannot be said such statutory strong presumption is rebutted. 31. Section 128 of the Karnataka Land Revenue Act also play an important role in this case which reads as under: “Section 128 of the Act says that if any person acquiring by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise any right, or has held the occupation as owner, mortgagee, landlord or tenant of the land or assignee of the rent or revenue thereof he shall report orally or in writing his acquisition of such right to the prescribed officer of the village within three months from the date of such acquisition. Thereafter, the said officer shall at once give in writing acknowledgement of receipt of the request to the person making it. However, there is a proviso to this Section which says that if any person acquiring a right by virtue of registered document he shall be exempted from the obligation to make such request to the prescribed competent officer. After receiving such requisition regarding acquisition of right, the revenue authorities shall carry out changes in the revenue records, after following due procedure.” Therefore, Sec. 128 of the Act mandatarily prescribes the statutory duty on the petitionerlandlord to intimate the authority immediately after surrender of the said land for the purpose of effecting revenue entries. 32. In this particular case it is not the case of the petitioner that he acquired right by virtue of any registered document. 32. In this particular case it is not the case of the petitioner that he acquired right by virtue of any registered document. There is no mention in the evidence or in any of the document that immediately after such surrender the owner gave any such intimation to the Court which has directed him to enter upon the land stating that he has actually taken over the possession from the tenant nor he intimated the revenue authorities within prescribed time that, after the surrender order passed by the Court he has taken over the possession of land and requested for change of entries in the revenue records. On the other hand, there is absolutely no explanation in the evidence as to why he kept quite for a period of more than nine long years, without either intimating to the Court or to the revenue authorities. 33. In the absence of sufficient satisfactory materials before the Court it cannot be at any stretch of imagination said that presumption u/S 133 of the Act raised, is rebutted. Therefore, I am of the opinion that the petitioners have failed to show to the Court even admitting that there was a surrender, that they have taken actual possession of the said land from the tenant. On the other hand, all the surrounding circumstances clearly show that the tenant continued in possession of the property as a tenant and he was found to be in possession as on the appointed date. Therefore, the so called surrender as claimed by the owner has not been established and it has not been shown to the Court that the same was acted upon. Hence, I do not find any strong reasons to deviate from the opinion expressed by the Land Tribunal. 34. Now let me consider what is the effect of continuation of the tenant even after such surrender which was not shown to have acted upon and the tenant has not been dispossessed from the land. The provisions of Karnataka Land Reforms Act, particularly Section 44 which refers to the vesting of land in the State Government, is the relevant provision to be borne in mind which reads thus: “44. The provisions of Karnataka Land Reforms Act, particularly Section 44 which refers to the vesting of land in the State Government, is the relevant provision to be borne in mind which reads thus: “44. Vesting of lands in the State Government: (1) 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 lands held by them under leases permitted under Section 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government. (2) Notwithstanding anything in any decree or order of or certificate issued by any court or authority directing or specifying the lands which may be resumed or in any contract, grant or other instrument or in any other law for the time being in force, with effect on and from the date of vesting and save as otherwise expressly provided in this Act, the following consequences shall ensue, namely, (a) all rights, title and interest vesting in the owners of such lands and other persons interested in such lands shall cease and be vested absolutely in the State Government free from all encumbrances; (b) xxxxxxx (c) xxxxxxx (d) xxxxxxx (e) xxxxxxx Provided that the State Government shall not dispossess any person of any land in respect of which it considers, after such enquiry as may be prescribed, that he is prima facie entitled to be registered as an occupant under this chapter; (f) the land owners, landlord and every person interested in the land whose rights have vested in the State Government under clause (a), shall be entitled only to receive the amount from the State Government as provided in this Chapter; (rest of the provision not necessary for consideration) 35.The above said provision makes it amply clear that irrespective of any decree or order of or certificate issued by any court or authority directing or specifying the lands which may be resumed or in any contract, grant or other instrument or in any other law for the time being in force, with effect on and from the date of vesting will follow the consequences as enumerated in the provision. That is to say, all rights, title, interest vested in owners of such lands are absolutely free from encumbrances, vest with the Government. That clearly disclose, even inspite of the decree of a Court or contract between the parties or any certificate issued by any authority or Court if the land appears to be tenanted land even after such decree order, certificate issued by the court or the authority, vest with the Government free from all encumbrances. Further, the proviso clearly disclose that, if that land is a tenanted land, even after such order, decree or certificate by any Court of law, the Government shall not dispossess any person of any land unless it considers that the said person is not entitled for occupancy rights. Proviso (f) to the provision clearly disclose that when the land vests with the Government is a tenanted land, the owner is only entitled to receive the amount from the Government as provided in the chapter. 36. The above said provision in its literal sense if applied to the present facts and circumstances of the case, the tenant has not delivered possession of the property by virtue of the said surrender and he continued to be in possession of the property. Therefore, as on the appointed date, i.e., 01.03.1974 and immediately prior to that, the land already vested with the Government under Section 44 of the Karnataka Land Reforms Act. Therefore, the person continued to be in possession of the property as a tenant shall not be dispossessed in any manner unless the competent authority holds that he is not entitled for occupancy rights. Therefore, when land vest with the Government u/S 44 of the Act which is also supported by the entries in the R.T.C. extract as referred to earlier by virtue of the mutation entries in M.E. No. 742, these lands vested with the Government. Therefore, the Land Tribunal has taken a perfect view that the tenant has continued in possession of the property even after such surrender and granted occupancy rights considering all the surrounding circumstances. 37. Learned counsel for the petitioners has made an unsuccessful attempt before this Court invoking provision u/S 7 of the Karnataka Land Reforms Act, which deals with restoration of possession to the tenants dispossessed in certain circumstances. The said provision reads as follows: “7. 37. Learned counsel for the petitioners has made an unsuccessful attempt before this Court invoking provision u/S 7 of the Karnataka Land Reforms Act, which deals with restoration of possession to the tenants dispossessed in certain circumstances. The said provision reads as follows: “7. Restoration of possession to tenants dispossessed in certain circumstances: (1) A person who or whose predecessor-in-title held any land as a tenant before the tenth day of September, 1957 and who after the date and before the appointed day, has been dispossessed from such land either by surrender of the tenancy or by eviction, may, within fifteen months from the appointed day apply to the Tribunal for the restoration of his tenancy unless on the appointed day the land has been put to non-agriculture use.” 38. This provision, in my opinion, is only applicable when particularly tenant has been dispossessed from the property as alleged in this case on the basis of the surrender made by the tenant in the year 1966. The provision is not applicable when there is no proof of dispossession of the tenant. If the possession has been delivered or shown to have been delivered by the tenant or for any reason the Court can draw an inference by way of surrounding circumstances that the tenant has lost possession over the land or if the Court under any provisions of the Karnataka Land Revenue Act or Land Reforms Act or under any law for the time being in force, can draw a presumption that by virtue of surrender, the tenant deemed to have delivered possession of the property, then only the tenant is entitled to seek restoration of possession u/S 7 of the karnataka Land Reforms Act, but not if the Court for any valid reasons holds that the actual taking over of the possession of the tenanted land from the hands of the tenant by the owner and dispossession was strictly in accordance with law was not proved. Therefore, the ruling cited by the learned counsel has already cited above reported in 2008 SAR (Civil) 627 is not applicable when it is not proved to the satisfaction of the Land Tribunal or the Court that by virtue of “surrender certificate” the tenant has voluntarily left the cultivation or possession has been taken over by the landlord. Therefore, the said provision is not applicable. 39. Therefore, the said provision is not applicable. 39. Last but not the least the learned counsel for the petitioners argued before the Court that the respondent No.3 claims that he has cultivated the land as a tenant but it is an admitted fact that, in the evidence before the Land Tribunal he has stated that, he was a Teacher and he was discharging his duties as a Teacher and therefore he cannot claim that he was personally cultivating the land and hence he is not entitled for grant of occupancy rights. In this context, learned counsel relied upon decision of this Court reported in 2001(1) KCCR 319 (Sri Krishnappa Karad since dead by Lrs. Vs. Sri. Hanumanthappa Karad and Ors.) wherein this Court has held that: “Whether a teacher an agriculturist within the meaning of Section 2(3) read with Section 2(11) of the Act and can claim occupancy rights exclusively?” This Court held in the negative holding that: “Probably the teacher as a person is expected of telling everything before the Court of law. It is also not in dispute that he was a teacher. The voluminous documents filed before the Tribunal go to show that not only as a teacher he was collecting the share of all the brothers to pay rent to the landlord and it is unfortunate that he has suppressed material facts. When the tenancy was sought to be claimed by a teacher and such a teacher claims to be the tenant to the exclusion of all other brothers, who are the real agriculturists and who are not impleaded anywhere else, how the entry came in his name alone, is a question to be understood and such entry cannot have any credence at all in the eye of law, as is evident from the records. Therefore, as a teacher he is not entitled to maintain or claim any occupancy rights at all." 40. The above said ruling has been rendered by the Court after analyzing the factual aspects in that particular case. It cannot be as an universal rule be applied to all the circumstances. It all depends upon the facts and circumstances of each case. The Court after observing that there was suppression of facts by the person that, he has not disclosed that he was doing the teacher work and also not disclosed that he was cultivating the land through his brothers. It all depends upon the facts and circumstances of each case. The Court after observing that there was suppression of facts by the person that, he has not disclosed that he was doing the teacher work and also not disclosed that he was cultivating the land through his brothers. Therefore, the Court held that he was not entitled for occupancy rights. But the facts and circumstances of this case are altogether different. The facts should be tested with the other circumstances of the case and also the statutory requirement as to whether the actual cultivation by a person is an absolute requirement under the provisions of the Land Reforms Act. 41. In this particular case it is argued that there is an admission on the part of the tenant that he was a teacher. The records of the Land Tribunal shows that the Tribunal has recorded the statement of the parties to the proceedings. In the statement recorded dated 25.11.1988 in the course of crossexamination he has stated that he was a primary school teacher. On that day the person was aged 75 years. It is not elicited from the evidence when actually he joined the profession as a teacher, when he retired from the profession and when he took the property from the owner to cultivate the same as a tenant and whether such cultivation by him was not at all personal in nature. All these facts are conspicuously absent in the crossexamination portion. On the other hand, it is an admitted fact, by the owner of the land that prior to 1966 according to their own version that this tenant was inducted and was in possession and cultivating the land from 1951 onwards upto 1966. That shows that, either by means of personal cultivation or by taking help of some coolie or other persons, he must have cultivated the land and regularly paying rents to the owner. It cannot be in the mouth of the owner that at no point of time, tenant was in possession of the property as a tenant. 42. In this background what is the statutory requirement is also to be looked into. As per Section 2(3) of the Karnataka Land Reforms Act, agriculturist means a person who cultivates the land personally. It cannot be in the mouth of the owner that at no point of time, tenant was in possession of the property as a tenant. 42. In this background what is the statutory requirement is also to be looked into. As per Section 2(3) of the Karnataka Land Reforms Act, agriculturist means a person who cultivates the land personally. Cultivation personally has been defined u/S 2(11) as under: “(11) To cultivate personally” means to cultivate land on one’s own account (i) by one’s own labour, or (ii) by the labour of any member on one’s family, or (iii) by hired labour or by servants on wages payable in cash or kind, but not in crop share, under the personal supervision of oneself or any member of one’s family. 43. Therefore, it is not mandatory on the part of the tenant to cultivate the lands personally. If he has got capacity do the dual work by means of supervision of cultivation of the land by engaging labour or servant or any members of his own family, then he can do it. The law will not prohibit a person from cultivating the land through others but the only rider is that, it should not be by way of giving share in the crop. Therefore, looking to the above said provisions of law, applying the said law to the facts and circumstances of the case, when it is admitted that, though he was a teacher he was capable of cultivating the land as a tenant, owner cannot raise such a contention. In the absence of clear cut evidence before the Court with regard to when the tenant has joined duty as a teacher, when he retired and in the absence of specific averments by the owner, the said ruling cited above will not come to the help of the petitioners. 44. Looking from any angle though the Land Tribunal has not in detail gone into meticulously facts and legal aspects but nevertheless the conclusion arrived at by the Land Tribunal is proper and correct, it does not call for any interference at the hands of this Court. It is quite understandable that the Land Tribunal is a body constituted consisting of the members and the Assistant Commissioner as a Chairman. They are not well trained in law or procedure. Therefore, only summary procedure is contemplated. It is quite understandable that the Land Tribunal is a body constituted consisting of the members and the Assistant Commissioner as a Chairman. They are not well trained in law or procedure. Therefore, only summary procedure is contemplated. If the Court is of the opinion that the Land Tribunal has understood the case of the parties applied the intention of the legislation and it has considered the material on record and passed orders granting occupancy rights, that would suffice the requirement of summary proceedings. 45. In this case the Land Tribunal has considered the contents of Form No. 7, evidence of the parties and also the entries in the R.T.C. extracts and also surrender of the land, etc. I do not find any strong reasons to differ from the opinion of the Land Tribunal, though one of the members has repelled with the opinion of the majority of the Land Tribunal that because of the surrender the tenant has lost rights and possession, therefore, he is not entitled for the occupancy rights. Such observation of one of the members is not supported by any other materials on record. Therefore, I proceed to pass the following order. ORDER Petition is dismissed.