ORDER : ANANT RAMANATH HEGDE, J. 1. The petitioners have assailed the order passed by the Land Tribunal, marked at Annexure-G. 2. In terms of the impugned order dated 18.03.2003, the Land Tribunal has conferred occupancy rights in favour of contesting respondents. 3. There were two different Form No.7 applications filed seeking occupancy rights in respect of two different survey numbers, in respect of different extents mentioned in Form No.7. 4. Rama Govind Marathe was one applicant. Pundalik Govind Marathe was another. By the time the matter was heard by the Land Tribunal in the year 2002, pursuant to the remand order passed by this Court, original applicants were no more and the legal representatives of the original applicants participated in the proceedings. 5. The petitioner/landlord (the legal representative of original landlady Gangawwa) is before this Court assailing the said order granting occupancy. 6. Learned counsel appearing for the petitioners taking through the facts of the case would contend that the properties in question were originally tenanted lands. Hari Govind Marathe was the tenant. In terms of resumption order dated 04.03.1957, marked at Annexure-A, tenancy in respect of the aforementioned properties was surrendered by Hari Govind Marathe in favour of the landlord Gangawwa W/o. Nagappa Uppin. Pursuant to the said order, the tenant Hari Govind Marathe delivered the possession of the properties and landlady Gangawwa came in possession of the properties. Learned counsel would also refer to the mutation entry No.197 to contend that the process of transfer of property through surrender is complete. 7. It is urged that the Land Tribunal could have granted occupancy rights only in case the applicants had established tenancy under Gangawwa or a person claiming under Gangawwa. The Form No.7 applicants failed to establish tenancy under Gagawwa. The Tribunal committed an error in holding that the order of surrender of tenancy is illegal and without jurisdiction and in contravention of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 , [Hereinafter referred to as the ‘Act of 1948’]. 8. Learned counsel for the petitioners would urge that tenancy is not established. No rent receipt is produced. There were no entry in the Record of Rights evidencing tenancy after 1955, and the Tribunal ignoring all these aspects erroneously held that the applicants were tenants in respect of the petition properties. 9. 8. Learned counsel for the petitioners would urge that tenancy is not established. No rent receipt is produced. There were no entry in the Record of Rights evidencing tenancy after 1955, and the Tribunal ignoring all these aspects erroneously held that the applicants were tenants in respect of the petition properties. 9. It is further submitted that the mutation entry No.197 pursuant to the order at Annexure-A, would demonstrate that the landlady came in possession of the properties and if the tenants were aggrieved by the said entry or the order directing delivery of possession in favour of the landlady, ought to have filed an application under Section 29(1) of Act of 1948, to reclaim possession within two years. Since the tenants failed to file such an application, tenants’ right over the properties if any, stood extinguished, and therefore, the properties cannot be treated as tenanted properties. 10. It is his further submission that after 01.03.1974, by applying Section 44 of the Karnataka Land Reforms Act, 1961, the records of rights in the said village were changed by making an entry in favour of the State where tenancy was created. And in respect of petition lands, no such entry was made, and it would establish that the properties were not in possession of the tenants as on 01.03.1974. 11. Learned counsel for the petitioners also urged that Sections 15 and 29 of Act of 1948 should be read together, and if so read, the order at Annexure-A would indicate that the proceeding held pursuant to surrender under Section 15 as well as an application under Section 29 of Act of 1948 and in such situation the landlord can also file application seeking possession and the application need not be necessarily filed by the tenant. 12. Learned counsel appearing for the contesting respondents would urge that the order at Annexure-A dated 04.03.1957 said to have been passed by the Treasury Officer is without jurisdiction. The provisions of Act of 1948 are not followed. 13. Under the said Act of 1948, tenant should file an application for surrender of the land in case the tenant intends to surrender tenancy, and thereafter the Mamaltdar should hold a proceeding and ensure delivery of the possession of the land in favour of the landlord after satisfying that the surrender is voluntary. 14. 13. Under the said Act of 1948, tenant should file an application for surrender of the land in case the tenant intends to surrender tenancy, and thereafter the Mamaltdar should hold a proceeding and ensure delivery of the possession of the land in favour of the landlord after satisfying that the surrender is voluntary. 14. Order at Annexure-A, is passed by Treasury Officer who is not a competent authority under the Act of 1948. The order is invalid as application for surrender is not filed by the tenant. 15. In addition, it is also urged that the earlier Committee of the Land Tribunal, way back in 1977-1978 inspected the spot and submitted a report. The spot inspection was conducted in the presence of the landlord and based on that the Tribunal has rightly come to the conclusion that the tenancy is established and occupancy is granted. 16. Pointing to the reasons assigned by the Land Tribunal it is urged that a finding is recorded holding that the petition properties are at a distance of 6 to 7 kilometres from the place where the landlord was residing and that properties were located in a village which was not well connected and in such circumstances, it is quite possible that the landlord might not have issued the receipt after collecting the rent. 17. Learned counsel appearing for private respondents would also urge that the tenancy is admitted before the Tribunal and also admitted in the pleading filed before the District Appellate Authority and without any order of surrender of tenancy as contemplated under law the tenancy should be deemed to have continued till 01.03.1974. 18. Learned counsel appearing for the contesting respondents would refer to the judgment of the Apex Court in Mohan Balaku Patil and others vs. Krishnoji Bhaurao Hundre , AIR 1999 SC 1114 to contend that the buildings found in the petition properties were standing in the name of the contesting respondents and the fact that those buildings are located in the petition properties would indicate that the contesting respondents are in possession of the properties and the presumption arising from the longstanding entry in the Record of Rights relating to the petitioners alleged possession would stand rebutted. 19. 19. Learned counsel appearing for the petitioners in reply would urge that the order at Annexure-A, passed in the year 1957 under the Act of 1948, would establish the fact that the possession of the properties was lawfully taken by the landlady, namely, Gangawwa. It is his further submission that if there was any procedural lapse in taking possession pursuant to the said order, such procedural lapse would not affect the validity of the surrender of tenancy. Once it is established that the tenancy has been surrendered, the tenant who claims right over the properties as a tenant must establish that a valid tenancy was created in his favour. The occupancy right has to be granted in favour of the tenant only if the tenancy is duly established by producing the relevant materials. Learned counsel in support of his contention would place reliance on the judgment of the Apex Court in Raghunath Prasad Pandey vs. State of Karnataka 2018 (5) SCC 594 20. It is also urged that right from 1955 till the order passed by the Land Tribunal, the owner’s name continued in the property records both in Column No.9 and 12 and that itself would indicate that the owner is in possession of the property and presumption arising from the longstanding entry in the property record is not rebutted. The Tribunal is not justified relying on the oral evidence in the absence of any rebuttal evidence to rebut the presumption that would emerge from the longstanding entries in the Record of Rights. 21. Adverting to the statement made in the examination-in-chief by the petitioner-the successor of Gangawwa, it is urged that the said statement cannot be construed as a statement for having created tenancy by Gangawwa in favour of Rama Marathe and Pundalik Marathe. The statement has to be understood with reference to the order passed by the Treasury Officer/Mamlatdar, marked at Annexure-A. Likewise, the statement in the appeal memorandum in Appeal No.238/1986 should also be understood in the context of the order made by the Treasury Officer/Mamlatdar. According to the learned counsel for the petitioner would only indicate that the contesting respondents were tenant under Gangawwa. 22. The Court has considered the contentions raised at the Bar and perused the records. 23. Order at Annexure-A is the order said to have been passed by the Treasury Officer of H.K. Yellapur. According to the learned counsel for the petitioner would only indicate that the contesting respondents were tenant under Gangawwa. 22. The Court has considered the contentions raised at the Bar and perused the records. 23. Order at Annexure-A is the order said to have been passed by the Treasury Officer of H.K. Yellapur. It appears that this order was passed under Sections 15(1) and 29(3) of Act of 1948. This order directs delivery of possession by the tenant to the landlady Gangawwa and the order also records that Hari Govind Marathe was the tenant. 24. Admittedly, applicants Rama Marathe and Pundalik Marathe were not parties to the said proceedings. Though the learned counsel for the petitioners would contend that Hari Govind Marathe and the Form No.7 applicants belong to the same family and are brothers, the order does not indicate that the proceedings were initiated against Hari Govind Marathe in his capacity as the manager of the joint family representing Form No.7 applicants. The order also does not indicate that Hari Govind Marathe and his family members, or his brothers, were required to handover the possession of the properties to the landlady. 25. Apart from that, the record indicates that the order was passed by the Treasury Officer and not by the Mamlatdar. There is nothing on record to hold that the Treasury Officer and the Mamlatdar were the same under the Act of 1948. 26. The Act of 1948 mandates that, an order relating to the surrender of tenancy must be passed by the Mamlatdar, who is the Competent Authority under the Act. 27. Learned counsel for the respondents has relied upon the judgment of the Apex Court in Ramachandra Keshav Adke (Dead) By LRs. And Others Vs. Govind Joti Chavare and Others , (1975) 1 SCC 559 , wherein it is held that an order of resumption has to be passed by the officer, who is authorized under the law to pass such order, and if not, then that order would be one without jurisdiction. 28. As already noticed, nothing is placed on record to accept the said plea. For the aforementioned reasons, the Court does not find any error in the order passed by the Tribunal which has held that the order at Annexure-A is passed by the authority without jurisdiction. 29. 28. As already noticed, nothing is placed on record to accept the said plea. For the aforementioned reasons, the Court does not find any error in the order passed by the Tribunal which has held that the order at Annexure-A is passed by the authority without jurisdiction. 29. Assuming that the order at Annexure-A is passed by the Mamlatdar, and Mamlatdar was also designated as Treasury Officer, still the said order is only against Hari Govind Marathe. Said order does not bind the respondents unless it is established that the order is passed against Hari Govind Marathe in his capacity as joint family manager comprising his two brothers or the Form No.7 applicants. There is no acceptable evidence to hold that Hari Govind Marathe and Form No.7 applicants were the members of the same category. 30. Learned counsel for the petitioners has relied on the judgment of the Apex Court in Raghunatha Prasad supra to contend that the procedural error in taking possession of the property from the tenant does not come in the way of accepting the petitioner’s contention that the petitioner is in lawful possession of the property. 31. It is to be noticed that the order at Annexure-A is not just suffering from procedural error. The said order in the first place is passed by the authority without jurisdiction as already noticed, and assuming that the order is passed by the competent authority, even then the order is not against Form No.7 applicants. Thus, it cannot be concluded that the tenancy was lawfully surrendered or terminated. Of course, the contesting respondents have to establish the tenancy to claim occupancy. 32. Now the question is whether the tenancy is created in favour of respondents by Gangawwa as claimed by Form No.7 applicants. 33. At this juncture, it is necessary to refer to the relevant portion of the statement dated 21.11.1984 in the examination-in-chief of Basappa Revanappa Kavali (writ petitioner) which reads as under: (Emphasis supplied) 34. Relevant portion of the statement dated 2.11.1984 in the examination-in-chief of Basappa Revanappa Kavali, reads as under: 35. It is also necessary to refer to the statement in the appeal memo in Appeal No.23/1986 filed before the District Appellate Authority. The said statement is as under: “Formerly, the opponents were tenants and this appellant has taken possession of the land in the year 1955-1956 through Court process” 36. It is also necessary to refer to the statement in the appeal memo in Appeal No.23/1986 filed before the District Appellate Authority. The said statement is as under: “Formerly, the opponents were tenants and this appellant has taken possession of the land in the year 1955-1956 through Court process” 36. The opponents in the said appeal are Rama Govind Marathe and Pundalik Govind Marathe. 37. As noticed from aforementioned statements in the examination-in-chief and in the appeal memo, it is asserted that Form No.7 applicants were tenants under Gangawwa. 38. Though it is urged that Gangawwa has taken possession from the tenants, the contention is not established in terms of order at Annexure-A as said order directs delivery of possession against Hari Govind Marathe and not against Form No.7 applicants. And the Court has also held as to how the said order at Annexure-A does not terminate the tenancy in favour of Form No.7 applicants. 39. It is noticed Gangawwa did not claim that the resumption proceeding was initiated by her against Form No.7 applicants. Under the law the surrender of tenancy has to be preceded by a proceeding before the Mamlatdar. That being the position, the Court is of the view that the tenancy in favour of Form No.7 is established in view of the stand of the petitioner that Form No.7 applicants were the tenants under Gangawwa and since surrender or termination of tenancy is not established the Court has to hold that the tenancy continued in favour of the applicants, notwithstanding the fact that there was no entry in the record of rights recognising tenancy. 40. It is well settled principle of law that there can be unrecorded tenancy. The entry in the record of right is not only the way of establishing tenancy. Even in the absence of any entry in the record of right, there can be tenancy. The tenancy is a question of fact, which can be established by various kinds of evidence and under the law prevailing then, the tenancy need not be only through the written agreements or entry in the record of right. 41. Since the petitioner asserted that both Form No.7 applicants were tenants earlier to 1956, the tenancy is admitted. As already discussed, the surrender of tenancy as required under law is not established. 41. Since the petitioner asserted that both Form No.7 applicants were tenants earlier to 1956, the tenancy is admitted. As already discussed, the surrender of tenancy as required under law is not established. Though it is stated that the possession was taken through the process contemplated under law, apart from Annexure-A, which is already held to be invalid for the reasons assigned above no document has been produced to show that possession was taken through Court process. Though there is a mutation recording transfer of possession in favour of the owner, it is to be noticed that said mutation is pursuant the order at Annexure-A which is held to be one without jurisdiction and not against the Form No.7 applicants. Thus, there is absolutely no material on record to hold that possession was taken from Rama Marathe and Pundalik Marathe the Form No.7 applicants through the process contemplated under the Act of 1948. 42. The law in this regard is also well-settled. Once the tenancy is established, unless it is surrendered in the manner known to law, it is deemed to that the tenancy continues. It is established that Form No.7 applicants are residing in a portion of the properties bearing Sy.Nos.10 and 13 is not in dispute. This would also lead to the conclusion (by preponderance of the probability) that the Form No.7 applicants were cultivating the property as tenants. It is more so in a situation where it is admitted that the owner was residing 6 to 7 kilometres away from petition properties. 43. The Court has also referred to the judgment in Abdul Ajij Shaik Jumma and Another vs. Dasharath Indas Nhavi and others , (2009) 17 SCC 769 . In the said judgment the Apex Court has held that surrender of tenancy under the Act of 1948 can be under Section 15 read with Section 29(2). The ratio laid down in the said judgment cannot be made applicable to the present set of facts of the case where there is no order for surrender against the Form No.7 applicants. Probably the judgment would have come to the rescue of the petitioners if the order was passed against Form No.7 applicants on the basis of an application filed by the landlord. 44. Probably the judgment would have come to the rescue of the petitioners if the order was passed against Form No.7 applicants on the basis of an application filed by the landlord. 44. Learned counsel for the petitioner has also urged that in the entire village, the entry is changed in Column No.9 of the property record, recording the State’s name wherever the land was held by the tenant immediately before 01.03.1974 and no such entry is made in the property records of the petition properties. As already noted by the Court, there can be unrecorded tenancy. Wherever the tenancy was recorded in the property records, the entry is made in the property records recording vesting of land in favour of the State under Section 44 of the Karnataka Land Reforms Act, 1961 (for short ‘Act of 1961’). However, in the present case it was unrecorded tenancy. Thus, no entry is made in the property records recording vesting of lands in favour of the State. 45. It is relevant to note that the vesting happens by operation of law under Section 44 of Act of 1961 and not because of entry in the records to that effect. 46. Learned counsel for the contesting respondents has referred to the judgment of the Division Bench of this Court in Puttegowda vs. State of Karnataka , AIR 1980 Kar 102 to contend that in case property is not surrendered despite the order of surrender, then the occupancy can be granted to such tenants. 47. This being the position, the Court has to hold that the tenants have established their case. The Tribunal was justified in granting the Form No.7 application filed by the applicants. 48. This Court, in exercise of jurisdiction under Article 227 of Constitution of India, does not find any reason to interfere with the said order. 49. Though the order of the Tribunal does not discuss all these factors in detail, the reasons for sustaining the impugned order are assigned in this order. Accordingly, the Writ Petition is dismissed.