Research › Search › Judgment

Karnataka High Court · body

2022 DIGILAW 1064 (KAR)

Krishnaji v. State of Karnataka

2022-08-12

N.S.SANJAY GOWDA

body2022
JUDGMENT Neranahalli Srinivasan Sanjay Gowda, J. - This is a petition by the landlord challenging the conferment of occupancy rights in favour of the tenants namely Mahadevappa Hanumappa Mane (6 acres 20 guntas), Dyamappa Hanumappa Mane (6 acres 13 guntas) and Boodappa Fakirappa Kanaja (7 acres 5 guntas) all situate in Block No. 68 of Revadihala village of Hubli Taluk. The following facts are not in dispute: 2. Block No. 68 (old No. 90 and 91) measuring 12 acres 33 guntas and 7 acres 5 guntas totally measuring 19 acres 38 guntas situate in Revadihal Village of Hubli Taluk was paraganavatan inam land. 3. On 04.01.1936, Govindrao Desai (father of the petitioner) executed a registered Lease Deed in favour of Rango Gurunath Kerakoppa. 4. In the year 1958-59, Rango Gurunath Kerakoppa, leased the property in favour of Hanamappa Mane, father of respondent Nos. 3 to 5 and subsequently, by a registered Deed dated 17.12.1960, he transferred his rights in favour of Venkatesh Patil. 5. However, in the year 1962, Krishnaji, petitioner herein instituted a suit in L.C. No. 152/1962 before the Munsiff Court, Hubli, for possession. The said suit was filed against Venkatesh Patil and the children of Hanumappa Mane i.e., respondent Nos. 3 and 4 and also Boodhappa Fakkirappa Kanjanavar i.e., respondent No. 5. In the said suit, Krishnaji categorically admitted that his father Govindrao Desai had executed a permanent Lease Deed dated 04.01.1936 in favour of Rango Gurunath Kerakoppa and despite the fact that the lease was limited to the lifetime of Rango Gurunath Kerakoppa, he had sub-leased the property illegally in favour of respondents 3 to 5 in contravention of the Bombay Hereditary Offices Act, 1874 and was therefore, entitled to possession. 6. The Court of Munsiff at Hubli decreed the suit on 21.06.1969. In the said suit, the learned Munsiff recorded that the suit property had been the subject matter of a permanent lease dated 04.01.1936 in favour of Rango Gurunath Kerakoppa and Rango Gurunath Kerakoppa had transferred his rights illegally in favour of the 1st defendant. As against the said decree, an appeal was preferred in R.A. No. 110/1969. 7. However, during the pendency of the appeal, execution proceedings were initiated in Ex. P. No. 391/1969 and Krishnaji (petitioner herein), the decree holder was stated to have been put in possession, thereby dispossessing respondents 3 to 5. 8. As against the said decree, an appeal was preferred in R.A. No. 110/1969. 7. However, during the pendency of the appeal, execution proceedings were initiated in Ex. P. No. 391/1969 and Krishnaji (petitioner herein), the decree holder was stated to have been put in possession, thereby dispossessing respondents 3 to 5. 8. It is not in dispute that on 22.07.1974, the appeal filed against the decree passed in L.C. No. 152/1962 i.e., R.A. No. 110/1969 was allowed and the decree for possession was set aside and the matter was remanded to the learned Munsiff. The said order of remand was challenged in M.S.A. No. 129/1974 and the decree passed in L.C. No. 152/1962 and R.A. No. 110/1969 was set aside and the matter was referred to the Land Tribunal to decide the question relating to tenancy since the Land Reforms Act, 1961 had been amended by then. 9. It is not in dispute that on 19.08.1974, respondents 3 to 5 had filed applications in Form No. 7 seeking for grant of occupancy rights and the Land Tribunal by order dated 30.10.1981 granted them occupancy rights. It is also not in dispute that the said order of the Land Tribunal was challenged in W.P. No. 31992/1981 and this Court by an order dated 11.10.1984 remitted the matter back to the Land Tribunal for fresh consideration. 10. On remand, the Land Tribunal once again proceeded to grant occupancy rights in favour of the tenants by its order dated 12.12.2003. This order was once again challenged in W.P. No. 440/2004 and this Court by an order dated 19.07.2007 set aside the order of the Land Tribunal and remanded the matter once again for reconsideration. 11. On remand, for the third time, the Land Tribunal by the order dated 22.08.2012 has conferred occupancy rights in favour of respondent Nos. 3 to 5 and it is this order that is impugned in this writ petition. 12. It is the case of Sri S.B. Hebballi, learned counsel for the petitioners that the Land Tribunal could not have registered respondents 3 to 5 as tenants since indisputably they were not in possession as on 01.03.1974. 3 to 5 and it is this order that is impugned in this writ petition. 12. It is the case of Sri S.B. Hebballi, learned counsel for the petitioners that the Land Tribunal could not have registered respondents 3 to 5 as tenants since indisputably they were not in possession as on 01.03.1974. He submitted that since the tenants had been lawfully dispossessed on 10.08.1969, they became disentitled to seek for occupancy rights by virtue of the amendment to the Land Reforms Act, 1961 which mandated that the tenants should be in possession as on 01.03.1974. 13. He submitted that even if it is held that the land in respect of which decree of eviction had been passed against the tenants had stood vested in the State under Section 44 of the Land Reforms Act, unless the tenants were in actual possession as on 01.03.1974, their claim cannot be entertained at all. He submitted that since admittedly as on 01.03.1974, the tenants were not in possession and had been dispossessed through the due process of law, the order of the Land Tribunal could not be sustained. 14. He also submitted that the petition for restitution filed under Section 144 of the Civil Procedure Code, 1908 had also been decided and this, thereby confirms that the tenants were not entitled for restitution of possession and consequently, on this score also, the order of the Land Tribunal could not be sustained. 15. He also advanced an argument that the permanent Lease Deed created in favour of Rango Gurunath Kerakoppa was ab initio void since it was in contravention with the provisions of Section 5 of the Bombay Hereditary Offices Act, 1874. He also sought to put forth the contention that there is no evidence indicating that there was any relationship of landlord and tenant between the parties and there was no proof of respondents 3 to 5 having paid rent at any time and therefore, the order of the Land Tribunal was required to be set aside. 16. Sri Ravi S. Balikai, learned counsel appearing for respondents 3 to 5, however, supported the order of the Land Tribunal. He submitted that since there is a registered Lease Deed in respect of land in the year 1936, the fact that the lands were tenanted lands cannot be disputed at all. 17. 16. Sri Ravi S. Balikai, learned counsel appearing for respondents 3 to 5, however, supported the order of the Land Tribunal. He submitted that since there is a registered Lease Deed in respect of land in the year 1936, the fact that the lands were tenanted lands cannot be disputed at all. 17. He submitted that since a suit was filed for possession as against the tenants in whose favour a registered Lease Deed had been executed and so also against their tenants whom they had inducted into the lands, it could not be contended that the land was not a tenanted land. 18. He submitted that notwithstanding the fact that the decree for eviction had been passed in the suit filed by the landlord, by virtue of Section 44 of the Land Reforms Act, which clearly states that even the lands, in respect of which a decree for eviction had been passed against the tenants, would stand vested in the State. As a consequence, the landlord had lost all title over the land. 19. He submitted that once the land stood vested in the State as it was a tenanted land, necessarily the Tribunal is required to determine who was the tenant of the lands and confer occupancy rights thereafter. He submitted that since the applicants were admittedly inducted as tenants of the lands, the Land Tribunal was bound to register them as occupants. 20. He submitted that since a decree of eviction passed against the tenants had been set aside on 22.07.1974 in R.A. No. 110/1969, in law, the tenants who had been dispossessed under the decree, which had been set aside, would be deemed to be in possession of the said lands. The law insofar as the consequence of the decree being reversed is clear and it states that the party, who had been dispossessed under a decree, which has been thereafter reversed, has an absolute right to be entitled to claim restoration and this restoration cannot be denied. In view of the fact that the tenants had an indefeasible right to reclaim possession, it cannot be urged by the landlord that the tenants were not in possession. 21. In view of the fact that the tenants had an indefeasible right to reclaim possession, it cannot be urged by the landlord that the tenants were not in possession. 21. Having heard the learned counsel for the parties, the question that arises for consideration in this writ petition is: Whether tenants who has been dispossessed pursuant to a decree of eviction would be disentitled for registration as an occupant under the Karnataka Land Reforms Act, despite the fact that the decree has been subsequently reversed? 22. The facts involved in this case is not in dispute. The land in question was leased out to Rango Gurunath Kerakoppa under a registered Lease Deed dated 04.01.1936. Thus, the fact that the land in question was tenanted is beyond doubt. It is also not in dispute that the landlord initiated proceedings for recovery of possession in L.C. No. 152/1962 on the premise that the tenants i.e., respondents 3 to 5 could not be construed as tenants and that he was entitled to recover possession. Thus, the fact that respondents 3 to 5 were in possession as on 1962 in respect of tenanted agricultural land cannot also be in dispute. 23. The Civil Court decreed the suit filed by the landlord for possession in the year 1969 and thus, until the date of decree i.e., on 21.06.1969, possession of the tenants over the tenanted agricultural land cannot be disputed by the landlord. It is also not in serious dispute that in an execution petition filed, the tenants are stated to have been dispossessed, notwithstanding the fact that they had preferred an appeal in R.A. No. 110/1969, which was pending consideration. The appeal filed by the landlord was eventually allowed and the decree of possession granted in favour of the landlord was set aside on 22.07.1974 i.e., after the Act came into force. 24. Section 44 of the Land Reforms Act, 1961 declares that all lands held by the tenants or in possession of tenants including tenants against whom a decree or order for eviction or a certificate for resumption is made or issued shall stand vested in the State Government. The said provision intends to ensure that all lands which were tenanted should stand vested in the State Government even if a decree for eviction had been passed against the tenant. 25. The said provision intends to ensure that all lands which were tenanted should stand vested in the State Government even if a decree for eviction had been passed against the tenant. 25. Since in the instant case, the lands were leased to Rango Gurunath Kerakoppa under the registered Lease Deed dated 04.01.1936, it cannot be disputed that the lands were tenanted lands. The fact that the Lease Deed executed stated that it was a permanent lease would only lead to an inference that the land had been leased in perpetuity and therefore the land being tenanted would necessarily have to vest in the State Government. 26. However, the counsel for the landlord contends that Sections 44 and 45 of the Land Reforms Act will have to be read conjointly and since Section 45 of the said Act states that only those tenants who had been cultivating the land personally as on the date of vesting alone would be entitled for being registered as an occupant. The contention is that since admittedly, in the instant case, the tenants were dispossessed on 10.08.1969 and were thereby not on possession as on the date of vesting, they would not be entitled for registration as an occupant. 27. It is his specific contention that it is necessary in law for the tenant to be in actual possession as on the date of vesting i.e., as on 01.03.1974 and since this crucial requirement of being in possession is admittedly not fulfilled by the tenants, they could not have been registered as an occupant. 28. Apart from the above, it is to be noticed here that the proceedings for eviction had been instituted against the tenants in 1962 vide L.C. No. 152/1962. During the pendency of this suit, the Mysore Land Reforms Act, 1961 was enacted and was brought into force with effect from 02.10.1965. Section 22 of the said Act1 created a statutory bar for evicting a tenant except on the grounds mentioned therein. Admittedly, the eviction of the tenants was not based on any of the grounds enumerated therein and thus there was a statutory bar for passing an order of eviction. Furthermore, as on the date of coming into force of the Land Reforms act, the tenant had also not been dispossessed from the lands in question. The Apex Court in the case of P.G. Eshwarappa Vs. Furthermore, as on the date of coming into force of the Land Reforms act, the tenant had also not been dispossessed from the lands in question. The Apex Court in the case of P.G. Eshwarappa Vs. M. Rudrappa & Ors., (1996) 6 SCC 96 has held as follows: "4. A reading thereof would clearly indicate that as on the date the Act had come into force the appellant had not taken possession of the land. By operation of sub-section (1) of Section 22 with a non obstante clause, any decree or order of a court of law, or anything contained in any enactment or law repealed by Section 142 or in any other law in force before the commencement of such enactment or law, no person shall be evicted from any land held by him as a tenant except on the grounds enumerated in clauses (a) to (e) of the Act. Admittedly, clauses (a) to (e) do not contain any of the grounds on which the respondents came to be ejected. The pre-existing right of landlord under a decree of a court of law or any other thing contained in any enactment or law repealed by Section 142, or bilateral contract stood nullified and has put an end to all liabilities incurred by the tenants. New rights and liabilities of the landlord and tenants were created, security of rights to the tiller of the soil as also forums are created for their enforcement. Thereby, the liability of ejectment incurred by the tenant under contractual relationship prior to the Act had come into force and the enforceability of the decree has been set at naught by legislative judgment. New rights have been created in favour of the tenants-in-possession. Admittedly, the respondents remained in possession as on the date the Act had come into force, i.e., on 2-10-1965. Execution had taken place in 1967, i.e., after the Act had come into force. Consequently, their eviction was clearly in violation of Section 22(1) of the Act. The High Court was right in its conclusion that since the respondents succeeded to the tenancy rights held by the father they took tenancy right by inheritance. They are entitled to the tenancy right held by their father as intestate successor. Consequently, their eviction in execution of the decree passed by the civil court was clearly in violation of Section 22(1) of the Act. They are entitled to the tenancy right held by their father as intestate successor. Consequently, their eviction in execution of the decree passed by the civil court was clearly in violation of Section 22(1) of the Act. The principles of estoppel or res judicata do not apply where to give effect to them would be to counter some statutory direction or prohibition. A statutory direction or prohibition cannot be overridden or defeated by a previous judgment between the parties.' 29. In the light of this decision, the tenants could not have been evicted and the statutory bar created under Section 22 of the Act could not be overridden or defeated by any judgment of any Court. If there was a statutory bar for the tenants to be evicted, even if there was an order of eviction and they were dispossessed, that entire proceedings, including their dispossession would be non-est. 30. An argument was also advanced by the learned counsel for the landlord that if it was the complaint of the tenants that they were unlawfully dispossessed, their remedy would be to seek for possession as contemplated under Section 7 of the Land Reforms Act. 31. No doubt, Section 45 of the Land Reforms Act does state that every tenant with effect on and from the date of vesting would be entitled to be registered as an occupant in respect of lands that he was cultivating personally before the date of vesting. The crucial requirement of Section 45 is that the tenant is required to be cultivating the land personally before the date of vesting. In the instant case, admittedly, the tenants were cultivating the land personally till they were dispossessed by the Civil Court pursuant to the decree of eviction. But for the decree of eviction, the tenants would have definitely continued to be in possession and cultivating the land personally as on the date of vesting. However, they lost possession by virtue of a lawful decree, which they had challenged and the challenge was still pending adjudication as on the date of vesting. The mere fact that the tenants were dispossessed pursuant to a decree of eviction passed against them would not by itself lead to an inference that they were not in possession as on the date of vesting so as to disentitle them from being registered as occupants. 32. The mere fact that the tenants were dispossessed pursuant to a decree of eviction passed against them would not by itself lead to an inference that they were not in possession as on the date of vesting so as to disentitle them from being registered as occupants. 32. It is to be emphasized here that the intent of the law is that a tenant is to be registered as an occupant on the principle that the tiller of the land should be made its owner. This essentially means that it is the intent of the law that the agriculturists who were farming the lands, in order to sustain themselves and their families, should be made the owners of the land so as to facilitate their upliftment in the society. Thus, the tenant, who was in possession right from 1962 and was dispossessed because of the decree of eviction, which was admittedly pending adjudication in appeal, cannot be construed as a tenant, who had lost possession. This is because it is the basic principle of law that on a decree being reversed, the consequence that had emanated from the passing of the decree would also have to be necessarily reversed. 33. In other words, if a party has been dispossessed pursuant to the decree and the same has been reversed, he acquires an absolute right to be put back in possession and status quo ante is to be restored. Thus, by virtue of the decree being executed, respondents 3 to 5 secured an absolute right to be put back into the same position that they were in prior to the decree being executed and therefore it has to be held that they are in deemed possession of the land in question. 34. The argument that the tenants had to take recourse to Section 7 of the Land Reforms Act cannot be accepted because Section 7 provides for a tenant to seek for restoration of possession if he had been in possession before 10.09.1957 and had thereafter been dispossessed either by surrender of his tenancy or by eviction if he were to make an application within fifteen months of the appointed day. The said provision absolutely has no application to the facts of the present case. 35. The said provision absolutely has no application to the facts of the present case. 35. The further argument of the landlord that the lease that had been created in favour of respondents 3 to 5 by Rango Gurunath Kerakoppa was a nullity by virtue of Section 5 of the Bombay Hereditary Offices Act cannot also be accepted. The Bombay Hereditary Offices Act had been enacted to amend the law relating to hereditary offices. Section 5 of the said Act prohibits the alienation of watan property or watan rights. The said section basically states that a watandar i.e., a person who has a hereditary interest in the office, cannot lease the property for more than 30 years without the sanction of the State Government. 36. Sri S.B. Hebballi, learned counsel for the landlords contends that since the father of the petitioner, Govindarao Desai had created a permanent lease, he had contravened Section 5 which prohibited creating of a lease for more than 30 years and therefore, the lease was a nullity. 37. Under the Bombay Hereditary Offices Act, if it appears to the Collector that the institution of legal proceedings is desirable with respect to any watan or the estate, the Collector is empowered to institute and prosecute for the protection of watan. Thus, if there is a violation of any statutory condition regarding the lease, that by itself would not render the creation of lease void and that would only enable the Collector to institute legal proceedings to protect the watan. The petitioners cannot take advantage of this provision to disown the permanent lease that had been created in favour of the tenants. I, therefore, reject the argument of the learned counsel for the petitioners made in this regard. 38. Resultantly, in view of the discussion above, it will have to be held that the lands were tenanted and the tenants were in possession till they were dispossessed through the process of the Court under a decree of eviction. Thus, the order of the Land Tribunal holding that they had proved that the lands were tenanted and they were tenants of the said lands and were entitled to be registered as occupants under the Karnataka Land Reforms Act cannot be found fault with. 39. The tenants had admittedly filed a petition for restitution in Misc. Thus, the order of the Land Tribunal holding that they had proved that the lands were tenanted and they were tenants of the said lands and were entitled to be registered as occupants under the Karnataka Land Reforms Act cannot be found fault with. 39. The tenants had admittedly filed a petition for restitution in Misc. 15/2005 before the I Additional Civil Judge (Jr Dn), Hubli and the said petition was dismissed as being premature as the proceedings regarding tenancy were still to be adjudicated. Since the Land tribunal has held that the lands were tenanted and respondents 3 to 5 were entitled to be registered as occupants and the said order is confirmed in this writ petition, it will also have to be held that respondents 3 to 5 (or their legal heirs) would also be entitled for restoration of possession forthwith. The Civil Court shall accordingly ensure that the possession of respondents 3 to 5 (or their legal heirs) are restored to them forthwith. Writ Petition is accordingly dismissed subject to the above direction issued to restore the possession of the respondents 3 to 5 (or their legal heirs). 122. The Civil Court shall accordingly ensure that the possession of respondents 3 to 5 (or their legal heirs) are restored to them forthwith. Writ Petition is accordingly dismissed subject to the above direction issued to restore the possession of the respondents 3 to 5 (or their legal heirs). 122. Eviction of tenant for default, etc.- (1) Notwithstanding any agreement usage, decree or order of a court of law, and subject to the provisions of section 14, no person shall be evicted from any land held by him as a tenant except on any of the following grounds, namely:- a) that the tenant has failed to pay the rent of such land on or before the due date during two consecutive years, provided the landlord has issued every year within three months after the due date, a notice in writing to the tenant that he has failed to pay the rent for that year; b) that the tenant has done any act which is permanently injurious to the land; c) that the tenant has sub-divided, sublet or assigned the land in contravention of section 21; d) that the tenant has failed to cultivate the land personally for a period of two consecutive years; e) that the tenant has used such land for a purpose other than agriculture or allied pursuits: Provided that no tenant shall be evicted under this sub-section unless the landlord has given six months' notice in writing informing the tenant of his decision to terminate the tenancy and the particulars of the ground for such termination, and within that period the tenant has failed to remedy the breach for which the tenant is proposed to be evicted. Explanation- A tenant shall be deemed to have failed to pay rent payable by him to the landlord for any year, if he does not pay it before the end of June next after the expiry of the year. (2) Nothing in sub-section (1) shall apply to the tenancy of any land held by a permanent tenant unless by the conditions of such tenancy the tenancy is liable to be terminated on any of the grounds mentioned in the said sub-section. (2) Nothing in sub-section (1) shall apply to the tenancy of any land held by a permanent tenant unless by the conditions of such tenancy the tenancy is liable to be terminated on any of the grounds mentioned in the said sub-section. (3) Notwithstanding anything contained in sub-section (1), the tenancy of any land held by a tenant who is a minor, a widow, an unmarried woman or who is subject to physical or mental disability or who is a serving member of the armed forces, shall not be liable to be terminated under the said sub-section only on the ground that such land has been sublet by or on behalf of the said tenant.