Karnataka High Court
Shivagouda S/O Bandu Benade vs The Land Tribunal Chikodi on 6 December, 2013
Author: Ravi Malimath
Bench: Ravi Malimath
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IN THE HIGH COURT OF KARNA TAKA
DHARWAD BENCH
ON THE 6 T H DAY OF DECEMBER 2013
BEFORE
THE HON'BLE MR.JUS TICE RAVI MALIMATH
WRIT PETITION NO.26795/2003 ( LR)
BETWEEN:
SHIVAGOUDA S/O. BANDU BENADE
AGE: 56 YEARS , R/O : BEDAKIHAL
TQ: CHIKODI, DIST: BELGAUM
... PETITIONER
(BY SRI RA VI S. BALIKAI, ADVOCA TE.)
AND
1. THE LAND TRIBUNAL, CHIKODI
BY ITS CHAIRMAN, CHIKODI
DIST: BELGAUM
2. THE S TA TE OF KARNA TAKA
BY ITS SECRETARY TO TH E REVENUE
DEPARTMENT, M.S.BUILDINGS
DR.AMBEDKAR ROAD, BANGALORE-1
3. ANNAJI S/O .VASUDEV DONGARKAR
MAJOR, R/O.'KEDAR NIVAS'
PLOT NO.6/1, R.S.NO.925A,
BEHIND HO TEL ROYAL ROOF,
DEOKAR PANAND, KOLHAPUR
(MAHARASHTRA)
4. BABU S/O.VASUDEV DONGARKAR
MAJOR, R/O.'KEDAR NIVAS'
PLOT NO.6/1, R.S.NO.925A,
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BEHIND HO TEL ROYAL ROOF,
DEOKAR PANAND, KOLHAPUR
(MAHARASHTRA)
5. SHANKAR S/O.VASUDEV DONGARKAR
MAJOR, R/O.'KEDAR NIVAS'
PLOT NO.6/1, R.S.NO.925A,
BEHIND HO TEL ROYAL ROOF,
DEOKAR PANAND, KOLHAPUR
(MAHARASHTRA)
... RESPONDENTS
(BY SRI VIGNESHWAR S. SHASTRI, ADVOCA TE, FO R
C/R.3,
SRI VINAYAK S. KU LKARNI, HCGP, FOR R.1 AND R.2,
SRI R.M .KULKARNI, ADVOCA TE, FOR S RI
G.BALAKRISHNA SHAS TRY , ADVOCA TE, FOR R.4 AND
R.5.)
THIS WRIT PETITION IS F ILED UNDER A RTICLES
226 & 227 OF CONS TITU TION OF INDIA PRAYING TO
QUASH THE ORDER DA TED 20.1.2003, PASSED BY TH E
RESPONDENT NO.1, IN CASE
NO.KLR/SR/86/BEDAKIHAL, PRODUCED AS
ANNEXURE-A , AND TO DIECT RESPONDENT NO.1 LAND
TRIBUNAL, TO GRANT OCCUPANCY RIGH TS OF TH E
PETITION LANDS SY.NOS .532/2A AND 532/2B OF
BEDAKIHAL VILLAGE, CHIKODI TALUK, BELGAUM
DISTRICT, TO THE PEITIO NER, AS PRAYED BY H IM,
ETC.,.
THIS PETITION COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner claims to be a tenant with respect to Sy.No.532/2A and 532/2B, measuring 2 acres 1 gunta each, situated at Bedakihal :3: village, Chikkodi Taluka, Belgaum District. That his family has been in possession and cultivation of the said lands as tenants for more than six decades since his grandfather's time. The respondents 3 to 5 are the landlords. It is the case of the petitioner that the lands in question belong to Dattatraya Munishwar. He died in 1910 leaving behind his widow Laxmibai and a daughter named Banutai who inherited the lands. That the mother gave up her rights in favour of her daughter Banutai and therefore Banutai became the exclusive owner of the lands in question. Banutai sold the lands by virtue of a registered sale deed dated 26.2.1924, in favour of one Ramachandra Bandu Choudhari who became the exclusive owner of the lands in question. He filed O.S.No.145/1925 for possession against his vender Smt.Banutai. The suit was decreed. Thereafter Shri Choudhari leased out the lands to one Babu Satagouda Benade, i.e., the grandfather :4: of the petitioner in the year 1938. On continuous cultivation he became a protected tenant and he acquired protected tenancy rights under Section 3(A) of the Bombay Tenancy Act, 1939. It is pleaded that in the year 1946 the landlord Shri Choudhari illegally inducted other persons into the lands. The present tenant's grandfather filed tenancy case for restoration of possession. The application was allowed on 6.9.1947 and it was directed that the grandfather of the petitioner be put into possession. However the other tenants filed an appeal against the said order which was dismissed. In the interregnum, the adopted son of Smt.Laxmibai namely one Gangadhar, filed a suit in O.S.No.278/1947 to declare that he is the adopted son of Laxmibai and for setting aside the alienation made by Banutai in favour of Choudhari. The suit was also filed against Choudhari. During the pendency of the suit, Gangadhar sold away the land in favour of the :5: father of respondents 3 to 5. Thereafter the suit was prosecuted by the father of the respondents 3 to 5. On contest, the suit was dismissed. The appeal filed in R.A.No.259/1952 was allowed and the suit was decreed. R.S.A.No.48/1956 was filed by the defendants which was dismissed confirming the order passed in R.A.No.259/1952. The title of Ramachandra Choudhari was set aside. Execution Petition No.307/1954 was taken out and possession was said to have been taken over from Choudhari and others. However the present tenants or their ancestors were not a party to the suit or the execution petition. Thereafter the tenants filed TNC No.449/1955 in terms of Annexure-R3, being obstructed in the enjoyment of his peaceful possession of the lands. The application was rejected. An appeal was filed before the District Deputy Collector, which was allowed on 30.4.1956. It was directed that he be put in possession of the lands in question, as he :6: is a protected tenant. Accordingly he was put in possession of the lands from 20.6.1956 in terms of Exs.B.8 and B.9. Against this, the landlord filed a revision, which is allowed on the ground that the tenancy Courts have no jurisdiction to grant declaration of tenancy of protected tenants. The said order was to be executed before the Tahasildar. The said application was rejected by the order dated 27.10.1973 which became final. Thereafter the landlord filed O.S.No.1/1964 seeking declaration of his ownership, title and possession. Since the question involved was one of tenancy, the matter was referred to the Land Tribunal. In the interregnum, on the amendment of the Land Reforms Act, the petitioner filed Form No.7 for grant of occupancy rights of the lands in question. By the order dated 24.10.1981, occupancy rights were granted. The landlord filed W.P.No.464/1982, wherein on constitution of the District Land Reforms Appellate Authority, the :7: same was transferred. Therein both the parties led in evidence. On the Appellate Authority being abolished, C.P.No.10387/1991 was filed before the Hon'ble High Court and after receipt of records the same was numbered as W.P.No.26946/1996. By the order dated 2.11.1998, the writ petition was allowed. The order of the Land Tribunal was set aside and the matter was remanded for a fresh enquiry. After remand, by the impugned order, the Land Tribunal dismissed the Form No.7 filed by the petitioner holding that he is not a tenant. Aggrieved by the said order, the present petition is filed.
2. Sri Ravi S. Balikai, learned counsel for the petitioner contends that the impugned order is bad in law and liable to be set aside. That the material on record would show that he is a tenant of the lands in question. That the records would show that he is cultivating the lands in question :8: from the last six decades. Under these circumstances the Tribunal committed an error in rejecting the Form No.7.
3. On the other hand, Sri Sachin S. Magadum, learned counsel for the respondent No.3 defends the impugned order. He contends that there is no error committed by the Land Tribunal that calls for any interference. He contends that the material would show that the tenant is a trespasser of the lands in question and hence no tenancy rights could be granted to him. Leaned Government Advocate supports the impugned order.
4. Heard learned counsels and examined the records. Tenancy rights was sought for two survey numbers i.e., Sy.Nos.532/2A and 532/2B. So far as Sy.No.532/2B is concerned, I have considered the contentions as well as the :9: material. The evidence would show that the tenant has been in cultivation of this survey number since the year 1958 onwards. The RTC records stand in the name of the tenant. There is no worthwhile material to support the claim of the landlord that he has been in cultivation of the land in question. That the entire records are in favour of the tenant. There is no material produced by the landlord so far as this survey number is concerned in order to hold that the tenant is not in cultivation of the land in question. Under these circumstances based on the material and the evidence on record, I have no hesitation to hold that so far as Sy.No.532/2B is concerned, the tenant has established his case. Therefore, the findings recorded by the Tribunal so far as this survey number is concerned is erroneous. The tenant is entitled to be granted occupancy rights with respect to Sy.No.532/2B is concerned.
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5. So far as Sy.No.532/2A is concerned, various contentions have been advanced in support of their respective cases. However the undisputed facts that emerge are as follows:
6. Banutai claims to have inherited the property of her father Dattatraya Munishwar. She executed a sale deed dated 26.2.1924 in favour of one Ramachandra Choudhari. Thereafter Chowdhari has inducted the tenants into the land in question. The suit by the adopted son of Dattatraya ended in the suit being decreed, by setting aside the sale deed executed by Banutai in favour of Choudhari. The sale deed dated 26.2.1924 was held to be invalid as well as the inheritance of the property by Banutai. However as on the date of induction of the tenants into the lands in question, namely somewhere in the year 1937-38, the landlord of the tenants was the : 11 : lawful owner with title and possession of the lands in question. Such a title and possession was not questioned in any Forum. The sale deed was executed on 26.2.1924. The tenants have been inducted in the year 1937-38. The suit filed by the adopted son Gangadhar was in the year 1947. The date of induction of the tenants into the lands in question was by virtue of the sale deed executed by the lawful landlord of the lands in question. Chowdhari became the owner with title and possession in terms of the sale deed dated 26.2.1924. Therefore it cannot be said, as sought to be made out by the landlord's counsel, that the tenant is a trespasser. By the subsequent decreetal of the suit, by setting aside of the sale deed executed by Banutai in favour of Choudhari, the same would not render the possession of the tenant as being a trespasser. The tenant was inducted by a lawful landlord as on the said date. The plea of reversion, would not render the : 12 : induction of the tenant as being not lawful or that of a trespasser. Hence the contention of the respondent to this effect cannot accepted.
7. On the similar lines is the judgment of this Court reported in ILR 1998 Karnatak a 3021 (Revanappa vs. Muniyappa and others), wherein the question was, when a trespasser was in possession, who has inducted a tenant, can such a person be considered to be a tenant or a deemed tenant. The Court held otherwise. It was of the view that a trespasser cannot give land to a person who could claim tenancy rights thereafter. It is only those persons who are in lawful possession with title or otherwise who could lawfully gave the land to the tenant. Only then such a tenant could claim protection under the Act. However the facts herein are different. The date on which the tenant was inducted, the landlord had a lawful right, title and interest in : 13 : the eyes of law. He was a holder of a valid sale deed in his favour. Therefore he cannot be said to be a trespasser as on the date of induction. Even the subsequent suit being decreed would not render the grant of land to the tenant for cultivation as being unlawful or that of a trespasser.
8. So too is the judgment of the Hon'ble Supreme Court, reported in AIR 1987 Supreme Cour t, 1326 (Palayi Kizhakkekar a Math aiy's son K.M.Mathe w and ano ther vs. Pothiyill Mommu tty's son Hamsa Haji and others). In terms of para 3, it was held that lands could be granted only by virtue of a lawful origin and not by persons in unlawful occupation based on trespass or forcible and unlawful entry. However the facts herein would show that the possession of the tenant over the lands were neither forcibly taken nor there was an unlawful entry. The entry by the tenant, is : 14 : through a person who was a lawful landlord in possession by virtue of the sale deed.
9. The various proceedings that have been relied upon would only show and would ultimately lead to the conclusion as to whether the tenants were inducted by a lawful landlord or not. Admittedly on the date on which they were inducted, the landlord Choudhari had a lawful title in his name. Therefore the subsequent proceedings need not be considered in order to answer the said question. The proceedings thereon would necessarily show the contrary. In fact that is not the case of the landlord at all. The case of the landlord is that, by virtue of a decree being granted, the same would revert back to the date of filing of the suit. Therefore on the date of filing of the suit, the landlord is deemed to be a trespasser. I'am unable to accept such a contention. Even assuming that the case of the : 15 : landlord is to be accepted, even then, the suit was filed in the year 1947. The tenant was lawfully inducted in the year 1937. Therefore even if such a contention is to be acceptable, it would not come to the aid of the landlord. Therefore I'am of the considered view that for the reasons stated hereinabove the petitioner is entitled to be granted occupancy rights with respect to Sy.No.532/2A is concerned.
10. Consequently, the petition is allowed in the following terms.
(i) The order of the Land Tribunal dated 30.1.2003, passed by the respondent No.1 in Case No.KLR/SR/86/Bedakihal, is set aside.
(ii) The Land Tribunal, Chikkodi, is directed to grant occupancy rights to the petitioner/tenant with respect to Sy.No.532/2A : 16 : and 532/2B measuring 2 acres 1 gunta each, respectively.
Rule made absolute.
SD/-
JUDGE Mrk/-