Karnataka High Court
Poovappa Bangera And Ors. vs The Land Tribunal And Ors. on 20 August, 2004
Equivalent citations: ILR2004KAR4786, 2004(7)KARLJ438, 2004 AIR - KANT. H. C. R. 3128, 2004 AIHC 4504
Author: S. Abdul Nazeer
Bench: S. Abdul Nazeer
ORDER S. Abdul Nazeer, J.
1. The petitioners have called in question the order passed by the Land Tribunal, Belthangady, in No. LRY/15/74-75 dated 14.1.2004 (Annexure-A) whereby the Land Tribunal rejected the application filed by the father of the petitioners seeking grant of occupancy right in respect of the land in question.
2. It is the case of the petitioners that their father late Babu Poojari had taken the schedule lands on lease from the mother of the respondents No. 8 and 9 for cultivation and on the basis of the said lease, he was cultivating the lands as on 1.3.1974. After his death, the petitioners are in possession and enjoyment of the said land. It is contended that respondents No. 2 to 7 were the original owners of the schedule lands. They had mortgaged the lands in favour Smt. Anthamma the mother of respondents No. 8 and 9. Smt. Anthamma had given the schedule lands on lease in favour of Babu Poojari, the father of the petitioners. Babu Poojari filed application in Form No. 7 for grant of occupancy rights. The Land Tribunal granted occupancy rights in favour of Babu Poojari by order dated 15.6.1976. The father of the respondents No. 2 to 7 filed an appeal before the Land Reforms Appellate Authority challenging the said order and the Appellate Authority had also rejected their appeal. Being aggrieved by the said order, a revision was filed in LRRP No. 957/1987 before this Court. This Court by order dated 22.3.2001 allowed the revision and remitted the matter to the Land Tribunal for fresh disposal in accordance with law. It is contended that during the pendency of the proceedings before the Land Tribunal, the 3rd respondent had made a statement admitting the creation of lease by Anthamma in favour of Babu Poojari. It is further contended that various documents such as the levy register, no due certificate for the relevant year and Tax Paid receipts produced by the petitioners was not considered by the Tribunal.
3. Respondents No. 2 to 7 have filed their objections. It is contended at the Writ Petition was filed with a malafide intention to knock off the schedule property. It is further contended that the property belonged to one Venkamma D/o. Devamma Hengsu and her children. Venkamma is the mother-in-law of respondent No. 2 and mother of respondents No. 3 to 7. The said Venkamma had borrowed loan on the basis of a Promissory Note and Anthamma the grand-mother of the petitioners and mother of respondent No. 8 and 9 filed a Civil Suit in O.S. No. 105/1967 for recovery of the said loan. After obtaining a decree, she brought the disputed property for auction sale in execution No. 140/1968. In order to pay the decretal amount. Venkamma and her children executed a registered usufructuary mortgage on 13.5.1968 for a period of 11 years in favour of Anthamma for Rs. 2.000/- Babu Poojari is the son-in-law of Anthamma and husband of respondent No. 8 and that they are governed by Aliyasanthana law. It is further contended that Babu Poojari was assisting Anthamma and respondents No. 8 to 9 in the cultivation of the lands. His cultivation was as a member of the family of Anthamma and that there is no relationship of landlord and tenant either between Babu Poojari and Anthamma or Babu Poojari with respondents No. 2 to 7. It is further contended that Anthamma could not have created valid tenancy in favour of her son-in-law Babu Poojari.
4. I have heard the learned Counsel for the parties.
5. Sri K.M. Nataraj, learned Counsel for petitioner submits that this Court in LRRP No. 957/1989 DD 22.3.2001 while setting aside the order passed by the Land Tribunal has directed reconsideration of the matter afresh in accordance with law. He draws my attention to the evidence of Smt. Varija, the 3rd respondent who was examined before the Tribunal. It is submitted that the 3rd respondent had admitted the tenancy of Babu Poojari in her evidence. He has taken me through various documents produced by the petitioners before the Tribunal justifying their claim of tenancy. It is argued that the finding of the Land Tribunal is contrary to the material placed on record. He further submits that there is no prohibition for Anthamma to lease the schedule lands in favour of her son-in-law. It is argued that Babu Poojari is not a member of her family and that Babu Poojari is a deemed tenant in respect of the schedule land. It is further argued that having regard to the amendment to the definition of 'tenant' by Karnataka Act No. 1/1978, leases created contrary to Section 5 of the Land Reforms Act, have been validated. He has relied on the decisions of Division Bench of this Court in the case of SHAMBAPPA V. VEERABHADRAPPA AND ORS., W.A No. 208/1977 DD 4.2.1980 in the case of K.A. SRIKANTA V. LAND TRIBUNAL, NARASIMHARAJAPURA AND ORS., W.A No. 19/1977 DD 15.4.1980 and in the case of SEENA SEREGARA V. LAND TRIBUNAL, . He has also relied on the decision of this Court in the case of T.C. BASAPPA V. THE GRAIN MERCHANTS CO. OP. BANK LTD., AND ORS., 1964 Kar.L.J page 289; KEMPEGOWDA AND ANR. V. PUTTASWAMAIAH AND ANR., 1964 Mys. L.J 286 and the decision in the case of BASAPPA K.K. AND ANR. V. LAND TRIBUNAL, SOMWARPET, 1976 Kar.L.J 274 for the proposition that a tenant from mortgagee in possession, as on 1.3.1974 is entitled to claim the status of deemed tenant as against the owner (mortgagor).
6. On the other hand, learned Counsel Sri A.V. Gangadharappa appearing for the respondents No. 2 to 7 submitted that the Mysore Land Reforms Act, 1961 prohibited creation of tenancy after the said Act has come into force i.e. with effect from 2.10.1965. He draws my attention to Section 5 of the said Act, which prohibits creation or continuation of lease respect of any land after the appointed date. He submits that Babu Poojari is a member of the family of Anthamma and that he was cultivating the land for and on behalf of Anthamma. It is further submitted that the Land Tribunal after consideration of the material placed on record has come to the conclusion that the petitions are not tenants. He points out the observations made by this Court in LRRP No. 957/1998 dated 22.3.2001 that only a person who is lawfully cultivating the lands would be entitled to be registered as a deemed tenant. Since the Tribunal and the Appellate Authority did not consider the evidence of the parties, the matter was remitted to the Land Tribunal for disposal in terms of the order. It is his further submission that the finding of fact arrived at by the Land Tribunal does not call for interference in exercise of power under Articles 226/227 of the Constitution of India. He has placed reliance on the decisions of this Court in the case of VEERAPPA RUDRAPPA ALAGAWADI V. THE LAND TRIBUNAL, ILR 1976 Kar. 116 and the decisions of the Apex Court in the case of MARUTI BALA RAUT V. DASHARATH BABU WATHARE AND ORS., and SURAYA DEVI RAI V. RAM CHANDER RAI AND ORS., 2003 AIR SCW 3872.
7. I have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials acted on record.
8. It is not in dispute that Smt. Venkamma Mother-in-law of respondent No. 2 and mother of respondents 3 to 7 had executed a registered usufructuary mortgage deed 'on 13.5.1968 in respect of the schedule property in favour of Anthamma grandmother of petitioners and mother of respondents 8 and 9. Babu Poojari. is the son-in-law of Anthamma. Petitioners contend that their father Babu Poojari was a deemed tenant under Anthamma, which is seriously disputed by respondents 2 to 7. Therefore, the question for consideration is whether Babu Poojari is a member of the family of Anthamma and cultivation of the lands by Babu Poojari is for and on behalf of the family of Anthamma. The 2nd question is whether Babu Poojari can claim the status of a deemed tenant subject to his establishing that he was lawfully cultivating the land in accordance with the provisions of the Act. The third question is whether Anthamma could have created a valid tenancy in favour of Babu Poojari in the year 1968 and the last question is whether the order impugned calls for interference in exercise of jurisdiction under Articles 226/227 of the Constitution of India.
9. Section 4 of the Act defines a 'deemed tenant' as a person lawfully cultivating any land belonging to another person, if such land is not cultivated personally by the owner and if such person is not a member of owner's family or a servant or hired labourer on wages payable in cash or kind, but not in crop share cultivating the land under the personal supervision of the owner or any member of owner's family, or a mortgagee in possession.
10. It is well established that a mortgagee in possession can create tenancy of land as defined under the Act. This Court in the case of KEMPEGOWDA AND ANR. V. PUTTASWAMAIAH AND ANR. reported in 1964 Mys. LJ 286 has held that a tenant who has been inducted by a mortgagee in possession is entitled to the protection of the Act as a deemed tenant. In the case of BASAPPA K.K AND ANR. V. LAND TRIBUNAL, SOMWARPET reported in 1976 Kar. LJ 274 has held that a tenant from the mortgagee in possession, whose tenancy had not been created outside the ordinary course of management of the land, and who continued to be in possession as on 1.3.1974 is entitled to claim the status of deemed tenant as against the owner (Mortgagor).
11. Section 5 of the Act prohibits creation or continuation of lease in respect of agricultural land after the commencement of the amendment Act. Sub-Section (1) of Section 5 of the Act is relevant for the purpose of deciding this case. It is as follows:
'Prohibition of leases, etc. - (1) Save as provided in this Act, after the date of commencement of the Amendment Act, no tenancy shall be created or continued in respect of any land nor shall any land he Leased for any period whatsoever.'
12. Sub-Section (34) of Section 2(A) of the Act defines 'tenant'. The definition of 'tenant' was amended by Act No. 1/1979. The amendment is deemed to have come into force with effect from 1.3.1974. The amended definition of tenant is as follows;
" 'tenant' means an Agriculturist (who cultivates personally the land he holds on lease] from a landlord and includes,-
i) a person who is deemed to be a tenant under Section 4;
ii) a person who was protected from eviction from any land by the Karnataka Tenants (Temporary protection from Eviction) Act, 1961; iia) a person who cultivates personally any land on lease under a lease created contrary to the provisions of Section 5 and before the date of commencement of the Amendment Act;
iii) a person who is a permanent tenant; and iv) a person who is a protected tenant.
Explanation - A person who takes up a contract to cut grass or to gather the fruits or other produce of any land, shall not on that account only be deemed to be a tenant;"
13. The object of the amendment was to remove certain defects felt in the implementation of the Act. The amendment was made with a view to declare the persons cultivating lands on the strength of the lease created upto 1st March, 1974 contrary to the provisions of Section 5 of the Act as 'tenant'. The amendment has validated all tenancies of lands created contrary to the provisions of Section 5 of the Act between 2.10.1965 till 1.3.1974.
14. In the case of Shambappa (supra) the Division Bench of this Court has held that the tenancies created between 2.10.1965 and 1.3.1974 are validated by the amendment Act. It is held in the said decision as follows;
"Sub-Section (7) of the Amendment Act has, as seen, validated all tenancies of lands created contrary to the provisions of Section of the Act between 2.10.1965 and 1.3.1974."
"In the light of the amended definition of 'tenant' and the validation of tenancies, the order of the learned single Judge has become unsustainable. As the learned single Judge has not considered the other contentions of the petitioner in the Writ Petition, the case should be remitted to him".
Again in the case of K.A Srikanta (supra), the Division Bench of this Court has held as follows;
"In this appeal, Shri Mohandas Hegde, learned Counsel for the appellant, contended that the first ground on which the Tribunal rejected the petitioner's application, was no longer valid in view of the amendment of Clause (34) of Section 2 of the Act by the Karnataka Land Reforms (Amendment) Act, 1978, enlarging the definition of tenant to include a person who cultivates personally any land on lease under a lease created contrary to the provisions of Section 5 and before the commencement of the Amendment Act (1.3.1974). This contention is well founded and must be accepted."
In the case of Seena Seregara (supra) it is held that a person cultivating the land on lease created contrary to Section 5 before 1.3.1974 is also a 'tenant' under the Act having regard to Amendment Act 1/1979. In the said decision it is held thus, 'As a result of the amendment a person who cultivates any Land contrary to the provision of Section 5 and before 1.3.1974 is also to be regarded as the tenant under the Act. It is therefore clear that the leases that were brought into existence in contravention of Section 5 now stand validated by Karnataka Act 1/1979.
15. Sri A.V. Gangadharappa relying on a decision of this Court in PARAYYA IRAYYA V. LAND TRIBUNAL, MUDHOL AND ORS., 1979() Kar.LJ. 282 submitted that in the case of a self-redeeming mortgage, during or after the expiry of the term stipulated in the deed, the person in possession will not be a tenant. Therefore the provisions of the Act have no application to such cases. It is true that a mortgagee in possession cannot be treated as a tenant when it is a self-redeeming mortgage during or after the expiry of the term stipulated in the deed of mortgage. In the present case Babu Poojari is claiming to be a tenant under Anthamma who is admittedly a usufructuary mortgagee. Therefore, the said decision is not applicable to the facts of this case.
16. That takes me to the other question as to whether Babu Poojari being the son-in-law of Anthamma is a member of the family of Anthamma, and whether he can claim occupancy right against the head of the family. The definition of 'tenant' is already extracted in the above paragraphs. 'Landlord' is defined under Clause 20 of Sub-Section (A) of Section 2 thus:
" 'Lordlord' means a person who has Leased land to a tenant and includes a person entitled to receive rent from a tenant".
The expression to "cultivate personally" is defined under Section 2(A) (11) as follows:
" '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 of 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 personally supervision of oneself or any member of one's family."
Family is defined in Sub-Section 12 of Section 2(A) of the Act thus;
" 'family' means -
a) in the case, of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any;
b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters;
c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and
d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters;"
17. A combined reading of the above provisions makes it clear that a tenant who is entitled to be registered as an occupant under Section 45 must be a tenant within the meaning of Clause 34 of Section 2(A) of the Act. Tenancy is the relationship between the landlord and tenant which is essentially a contractual relationship between the landlord and tenant holding different interests in the demised land. The aforesaid provisions indicate that a son-in-law does not become a member of the family as defined under Sub-Section 12 of Section 2(A) of the Act.
18. At this stage, learned Counsel for the respondent submits that by custom, the son-in-law becomes the member of the family though statutorily he may not be so, and cultivation of the land by Babu Poojari is for and on behalf of Anthamma. Therefore, he cannot claim occupancy rights as against Anthamma, When the words 'tenant' 'landlord' family' or 'to cultivate personally' are defined as having a particular meaning in the Act, it is that meaning alone which must be given to it unless there is anything repugnant in the context. It is an indisputable canon of construction that when an expression is defined in the statute, unless there is anything repugnant in the subject or context, the expression has to be construed as having the same meaning in the dictionary clause. The statutory definition should be applied wherever the expression occurs in the statute. The Act in its wisdom does not presume that a son-in-law is the member of the family of the landlord whatever be the position in common law or other laws in the country.
19. In the case of SMT. A. JALAJAKSHI D. ALWA V. MEENAXI NAIK BY LRs., 1987 (1) KLJ page 1 a Division Bench of this Court has held that when the Act in its wisdom does not recognise tenancy between the husband and wife though common law and other laws may so recognise the same, the position under the Act is that there can be no tenancy between a husband and wife and vice versa. The relevant portion reads as under;
'When a husband or a wife cultivates the land of his wife or husband or vice-versa under the artificial definitions of the Act, then such person does not cultivate the land of the other on his or her own account independently but cultivates the same for and on behalf of the other only. The tenancy of one spouse is treated as the tenancy of the other spouse also. So also the cultivation of tenanted lands by one spouse is treated as the cultivation by the other spouse, The Act in its wisdom does not recognise a tenancy between a husband and wife and vice-versa, though the common law and other laws may so recognise the same with which we are not concerned. Whatever be the position in common law or other laws of the country with which we are not concerned in these cases the position under the Act is that there can be no tenancy between a husband and wife and vice-versa at any rate while that married status exists between them as in the present cases."
20. In the case of GOPAL RAO V. LAND REFORMS TRIBUNAL, BASAVAKALYAN, 1979(2) KLJ 11 it is held that under the definition of family in Sub-Section 12 of Section 2(A) brothers who are majors will not constitute 'family' within the meaning of the said clause. It is further held that there will not be any prohibition for a brother claiming deemed tenancy under his another brother, because the former will not be the member of the latter's family within the meaning of Sub-Section 12 of Section 2(A) of the Act.
21. Apart from the above, even under Aliyasanthana law, a son-in-law is not a member of the Kutumba of Anthamma. Aliyasanthana law is a customary law governing certain communities in South Kanara District. 'Kutumba' is the name given to the family consisting of males and females all descended in the female line from a common ancestress and it is governed by a matriarchal system, the devolution being through female line. The children of the female members of the family are members of the Kutumba, the children of the male members are not.
In the case of SMT. RATNAMALA V. STATE OF MYSORE AND ORS., AIR 1968 Mysore 216 it is held as follows:
"As stated in Mayne's Treatise on Hindu Law, Aliyasanthana Law is the customary law governing certain communities amongst Hindus in South Kanara District. 'Kutumba' is the name given to the joint family consisting of males and females all descended in the female line from a common ancestress. Kutumba may consist of two or more branches known as 'Kavarus' each Kavaru or branch consisting of one of the female members of the Kutumba and her descendants in the female line. The outstanding feature of the Aliasanthana Kutumba is, that like the Marumakkathayam Tarwad, it is governed by a matriarchal system, the devolution being through female line. In other words, while the children of the female members of the family are members of the Kutumba, the children of the male members are not."
Even if it is taken that the petitioners are governed by Aliyasanthana law, a son-in-law will not be a member of the family. Therefore, there cannot be a prohibition for a son-in-law to claim tenancy under his mother-in-law.
22. This Court has remanded the matter in LRRP No. 957/89, to the Tribunal with a specific direction to find out if there is a genuine lease of land by Anthamma in favour of Babu Poojari. It is also observed that if the land in question was given on lease by Anthamma in favour of Babu Poojari, he would be a deemed tenant within Section 4 of the Act. It is further observed that the object of the Legislation is not to deprive a mortgagor of his right to redemption of the land which was given on mortgage and that in case of genuine lease of a land by the mortgagee in possession, the lessee would be entitled to be registered as a deemed tenant of such agricultural land. The relevant portion of the order is as follows;
"......... The object of the legislation is not to deprive a mortgagor his right of redemption of the land, which was given on mortgage. It is only in case of genuine lease of a land, the lessee would be entitled to be registered as a deemed tenant of such agricultural land. An attempt made by the mortgage in possession to deprive the right of redemption of the mortgagor cannot be lightly approved either by the Tribunal or by the Appellate Authority. It is only a person who is lawfully cultivating the land who would be entitled to be registered as a deemed tenant. This aspect of the matter has been overlooked both by the Tribunal, and by the Appellate Authority.
23. Perusal of the order impugned shows that the Tribunal has not considered the documents placed by the petitioners justifying their claim of tenancy. As rightly pointed out by the learned Counsel for the petitioners, the evidence of the 3rd respondent was not taken into account by the Tribunal. It is well established that while recording a finding of fact, if admissible and material evidence has not been considered or inadmissible evidence affecting impugned finding has been admitted or a finding of fact is arrived based on no evidence that will also amount to error of law and is amenable to judicial review under Articles 226/227 of the Constitution of India. Needless to say that judicial review is directed not against the correctness of the decision but against the decision making process. In the case of SYED YAKOOB V. K.S. RADHAKRISHNAN AND ORS., it is held as follows;
"a writ of certiorari can also be issued if it is shown that in recording a finding of fact, admissible evidence has not been admitted, or inadmissible evidence affecting the impugned finding has been admitted. A finding of fact based on no evidence would also be an error of law and as such amenable to such a writ."
24. Sri A.V. Gangadharappa learned Counsel for the petitioner has relied on a decision of the Hon'ble Supreme Court in the case of MARUTI BALA RAUT V. DASHARATH BABU WATHARE AND ORS. and SURAYA DEVI RAI V. RAM CHANDER RAI AND ORS (Supra) for the proposition that interference under Article 226 of Constitution of India is called for when a sub-ordinate Court found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. It cannot be disputed that the High Court while exercising its powers under Article 226/227 was not entitled to discuss the evidence and come to its own conclusion on the evidence, as to who was in possession of the land. In this case, the material evidence available on record goes to the root of the matter. This Court in LRRP No. 957/1987 while remanding the matter has directed the Tribunal to consider as to whether the lease claimed by Babu Poojari is a genuine lease. The Tribunal has overlooked the said aspect of the matter. The Tribunal has not even considered the oral evidence of the parties on record. In the Circumstances I am of the view that the order impugned is not sustainable in law.
24. In the result, the Writ Petition succeeds and it is accordingly allowed. The order dated 14.1.2004 passed by the Land Tribunal is set aside and the matter is remitted back to the Land Tribunal for fresh disposal in accordance with law and in the light of the observations made in the order. No costs.