Karnataka High Court
Bhimappa Channappa Kapali (Deceased) ... vs Bhimappa Satyappa Kamagouda And Ors. on 28 May, 2002
Equivalent citations: ILR2002KAR3055, 2003(2)KARLJ148, 2002 AIR - KANT. H. C. R. 2429, (2003) 2 KANT LJ 148 (2002) 3 ICC 720, (2002) 3 ICC 720
Author: N. Kumar
Bench: N. Kumar
JUDGMENT N. Kumar, J.
1. The learned Single Judge of this Court while setting aside the order of the Land Tribunal, rejected the Form 7 filed by the appellant, which order was upheld by a Division Bench of this Court in appeal. Appellant challenged the said order before the Supreme Court in Civil Appeal No. 5 of 2001 and the judgment in the writ appeal came to be set aside and the matter was remitted to this Court with a direction to restore to its file Writ Appeal No. 7109 of 1999 and to dispose of the case afresh after considering the two crucial aspects, viz.:
(i) Whether a tenancy had been created by Shivawwa in favour of the appellant and the entries in the record of rights (referred to above) could be taken as proof thereof; and
(ii) If there was any tenancy whether that would survive the death of Shivawwa, particularly in view of the admitted position that after gift deed was created by Shivawwa in the year 1961 she had only a limited interest in the property.
2. In order to answer the aforesaid aspects it is necessary to have a look at the facts.
2.1 One Gerappa Kamagouda was the owner of the lands in question. Second respondent-Shivawwa was his legally wedded wife. They had no issues. Gerappa died intestate and issueless. Therefore, Shivawwa after the death of Gerappa executed a registered gift deed dated 17-1-1961 in favour of the first respondent in this appeal, Bhimappa Satyappa Kamagouda who is none other than the son of Gerappa's elder brother. Under the terms of the gift deed ownership rights were transferred to first respondent, whereas Shivawwa retained the right to enjoy the possession of the land in question towards her maintenance. It appears thereafter at the instance of her brothers Shivawwa filed a suit O.S. No. 275 of 1961 challenging the said gift deed on the ground that it was obtained by fraud and misrepresentation. The said suit after contest came to be dismissed on 10-10-1963. Shivawwa preferred an appeal R.A. No. 789 of 1965 which also came to be dismissed. Against the said judgment and decree, Shivawwa preferred a second appeal in R.S.A. No. 28 of 1968 which also came to be dismissed on 16-11-1971 affirming the judgment and decree of the Courts below. In the original suit, Shivawwa and the deceased appellant were examined as witnesses. The deceased appellant in categorical terms has admitted that he has attested the gift deed as a witness. Further, he has stated that he is enjoying the land in question. In the entire proceedings there is no whisper about any lease of the land in question by Shivawwa in favour of the deceased appellant. It is also stated the deceased Shivawwa and the deceased appellant jointly gave a vardhi and got the name of the deceased appellant mutated in the revenue records. All these facts are undisputed and borne out from the records.
2.2 It is only when the suit filed by Shivawwa was concluded by disposal of the regular second appeal in the year 1971 taking advantage of the provisions of the Karnataka Land Reforms Act (hereinafter for short called "the Act"), on 17-8-1974 an application under Section 48-A(1) was filed by the deceased appellant for conferring occupancy rights in his favour. It is pertinent to mention here in the said Form 7 he has shown Shivawwa as the landlord/owner. He stated in the said application that he has been cultivating the land as a tenant for many years. Deliberately the first respondent was not made a party in the said proceedings. However, on coming to know of such an application the first respondent appeared before the Land Reforms Tribunal and opposed the said application. After contest the said application was rejected by the Land Reforms Tribunal by its order dated 2-7-1976 in Case No. KLR SR 8537/74. Aggrieved by the said order, the appellant preferred a writ petition before this Court in W.P. No. 7085 of 1976 which also came to be dismissed holding that there is no relationship of landlord and tenant between the parties. In the writ appeal preferred against the said order this Court by its order dated 24-3-1983 set aside the orders of the learned Single Judge as well as the Land Reforms Tribunal and remitted the matter to the Land Reforms Tribunal for fresh consideration. After such fresh consideration the Tribunal granted occupancy rights holding that the deceased appellant is cultivating the land, admittedly, the first respondent is not in possession of the land and that the revenue records show the name of the deceased appellant. The first respondent aggrieved by the said order preferred a writ petition challenging the said order in W.P. No. 2215 of 1995. Learned Single Judge on consideration of the entire material on record including the previous proceedings be-Fore the Civil Court held that the appellant being the son of Shivawwa's elder brother and he was living with her after the death of her husband was cultivating the land for and on behalf of Shivawwa and therefore it amounts to cultivation by Shivawwa herself. Secondly, it was held as Shivawwa had executed a gift deed in favour of the first respondent which gift deed has been upheld by this Court she was not the owner of the property for her to create any tenancy rights in favour of the appellant. In the background of these undisputed facts the entries in the revenue records lose importance and the presumption stands rebutted and as such it was held there is no relationship of landlord and tenant and no tenancy is created. As such the order of the Land Reforms Tribunal was set aside and the application Form 7 was rejected. The appellant challenged the said order in appeal which came to be dismissed.
When the said order was challenged before the Supreme Court, the same has been set aside and the matter is remitted back for fresh consideration on the aspects mentioned earlier.
3. Sri Jayakumar S. Patil, learned Counsel appearing for the appellant, contended firstly, that the factum of creation of tenancy by Shivawwa in favour of the appellant is proved by the entries in the revenue records and as there is a presumption in favour of the appellant under Section 133 of the Karnataka Land Revenue Act, in the absence of any evidence to rebut such presumption the tenancy stands proved. Secondly, he contended even if the materials on record do not prove the case of tenancy, as the deceased appellant was lawfully cultivating the land in question belonging to another person and when that land is not personally cultivated by the owner, he is a deemed tenant under Section 4 of the Act and is entitled to be granted occupancy rights. He further submits as neither Shivawwa nor the first respondent has made any application within one year from the appointed date for a declaration that the appellant is not a tenant, the deceased appellant is deemed to be a tenant of the land in question. In support of his contention he relies on a judgment of this Court in the case of Basava Devodiga and Ors. v. Anandaraya Patali and Ors., 1999(3) Kar. L.J. 30 2 and also the judgment in the case of Dahya Lala and Ors. v. Rasul Mahomed Abdul Rahim and Ors., 1962 Mys. L.J. 958(SC)
4. Smt. Sona Vakkund, learned Counsel for the respondent, submitted when under a registered gift deed the property has been gifted to the first respondent, Shivawwa had no right in the property and therefore she could not have created any tenancy in favour of the deceased appellant. The entry in the RTC is made during the pendency of the legal proceedings initiated by Shivawwa for cancellation of the gift deed and more so it is on the basis of a collusive vardhi, as such the said entry would not give rise to any presumption. That apart she submitted that before an entry is made in the RTC in the name of the deceased appellant, the procedure prescribed in law under Sections 128 and 129 of the Land Revenue Act has not been followed, as such no presumption would arise under Section 133 of the said Act. That apart from 1961 till 1971 in the proceedings pending between the parties neither Shivawwa nor the deceased appellant who have given evidence whispered about this factum of tenancy. In Form 7, filed by the deceased appellant in 1974 after the judgment of the High Court in 1971, the first respondent was not shown as the owner or the landlord of the land in question though his title has been declared by that time by this Court. As the deceased appellant was cultivating the land in question as a representative of the deceased Shivawwa, it cannot be said that he was in possession more so in lawful possession. Therefore, he cannot be said to be a deemed tenant under Section 4 of the Land Reforms Act.
5. From the facts stated supra, it is clearly established that the ownership of the land in question vested with the first respondent. First respondent has not leased the land in question in favour of the deceased appellant. Therefore, there is no relationship of landlord and tenant between the first respondent and the deceased appellant. It is amply clear by the fact that in the Form No. 7 filed by the deceased appellant he did not show the first respondent as the owner/landlord of the land in question nor such a case is put forth ever by the deceased appellant.
6. Therefore, now the question that arises for consideration is, what is the right Shivawwa had in the property after executing a registered gift deed in favour of the first respondent. A bare perusal of the gift deed makes it clear that she did not give possession of the lands in question to the first respondent under the gift deed. She retained the same dur ing her lifetime. It is only after her lifetime possession has to pass on to the first respondent. Therefore, notwithstanding the execution of the gift deed possession of the property continued with Shivawwa. It is not in dispute that till the death of Gerappa, Shivawwa's husband, he was cultivating the land. After the death of Gerappa the deceased appellant came and settled down with Shivawwa in her house. They were living together as members of the family. As Shivawwa was a lady and she needed some male help to cultivate the lands in question and manage the properties, the appellant who is none other than Shivawwa's elder brother's son assisted her in cultivation and management of the proper ties. In fact he has also assisted Shivawwa in prosecuting the suit filed by her against the first respondent for cancellation of the gift deed even by deposing before the Court. It is in the course of such management when the litigations were pending in appeal both of them jointly made a vardhi and got the name of the appellant mutated in the revenue records showing the appellant as the person in cultivation on crop share basis. Throughout the proceedings before the Civil Court the revenue records were never produced. However, they took a stand that the land in question is in their possession and there was no whisper about the creation of any tenancy in the evidence given before the Civil Court. It is only for the first time after they lost the battle in the High Court, taking advantage of the provisions of the Act which provided for grant of occu pancy rights in respect of tenanted lands as on 1-3-1974, to deprive the lawful right of the first respondent to the land in question an application in Form 7 was filed in 1974. As already stated, in the said Form 7 filed by the appellant he has shown Shivawwa as landlord, and though by that time the High Court had upheld the gift deed, first respondent was not shown as the owner of the land. These undisputed facts clearly establish that no tenancy was created by Shivawwa in favour of the appellant. As the entries in the revenue records are based on a collusive representation by the appellant and Shivawwa without the knowledge and consent of and without any enquiry and without hearing the owner of the land in question, the same cannot be taken as proof of tenancy. In the absence of existence of tenancy in the aforesaid circumstances a mere entry in the record of rights brought about by collusion would not be a proof of non-existing tenancy.
7. Though Section 133 of the Karnataka Land Revenue Act which deals with presumption regarding entries in the records providing that an entry in the record of rights and a certified entry in the register of mutations or in the patta book shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor, before that presumption could be raised it should be shown that such entries are duly certified entries under Section 129 and thereafter such entries are made in the record of rights. Prior to the making of the entries in the name of the appellant, the entries in the revenue records stood in the name of Gerappa, the husband of Shivawwa. After the death of Gerappa, Shivawwa has executed a registered gift deed in favour of the first respondent. However, first respondent acquired a right in the land in question by virtue of a registered document. The registering authority under Section 128 of the Land Revenue Act is obliged to inform the concerned revenue authorities about the acquisition of right by first respondent in the land in question. Before a change of entry is made, the revenue authorities were under an obligation to notify the owner of the land in question and only after hearing his objections and after enquiry and passing an order in the prescribed manner they shall certify the entry and thereafter make the necessary entry in the register of mutations. If entries are made in this manner after complying with the provisions of Sections 128 and 129, under Section 133 the Court shall presume such entries to be true until the contrary is proved. In the instant case before altering the entries admittedly no notice was given to the first respondent, no enquiry has been held and the proceedings pending between the parties make it clear that the entries made in the revenue records are illegal and these facts and circumstances are sufficient to rebut such presumption. Therefore, having regard to the facts and circumstances of the case and the proved and admitted facts we have no hesitation in holding that no tenancy was created by Shivawwa in favour of the appellant and the entries in the record of rights would not prove the said factum of tenancy.
8, Insofar as the claim as a deemed tenant under Section 4 of the Act, the first and the foremost essential requirement is that appellant should be lawfully cultivating the land belonging to another person if such land is not cultivated personally by the owner. Admittedly, the owner of the land being the first respondent is not personally cultivating the land. But the question is whether the appellant is lawfully cultivating the land. The appellant does not trace his right of cultivation to the owner at all. His specific case is he took the land in question on lease from Smt. Shivawwa who admittedly had a limited right to enjoy possession during her lifetime. Whether Shivawwa had a right to transfer that right to be in possession during her lifetime to the appellant itself is doubtful in view of the judgment of the Supreme Court in the case of Khushalchand Swarup Chand Zabak Jain v. Sureshchandra Kanhaiyalal Kochar and Anr., 1995 AIR SCW 1778 : 1995 Supp. (2) SCC 36 where it has been held when a donor divests her title to the property after due execution and registration of the gift deed, she has been divested of her right and interest except her beneficial right to enjoyment of the property during her lifetime and therefore any right created by her does not confer any right in the person so purported to create and is inconsequential. However, assuming for the argument sake she had a right to alienate that right of possession, in the facts and circumstances of this case, it is not proved that the appellant took the land on lease from her for the purpose of cultivation. On the contrary, the material on record discloses having regard to the fact that Shivawwa was a lady and aged and she had no male assistance, the deceased appellant was assisting her in cultivation and management of the lands in question. In other words, the cultivation by the appellant would be cultivation by Shivawwa herself and no legal right is created in the deceased appellant.
9. Any person who does not lawfully enter on the land of another and cultivate the same cannot claim the status of a deemed tenant under Section 4 of the Act. Though, in the case of Dahya Lala, supra, the Hon'ble Supreme Court held it is not the condition that the applicant must cultivate land with the consent or under the authority derived directly from the owner, to import such a condition is to rewrite the section, and destroy its practical utility, a person who derives his right to cultivate land from the owners would normally be a contractual tenant and he will obviously not be a "deemed tenant". Persons such as licensees from the owner may certainly be regarded as falling within the class of persons lawfully cultivating the land belonging to others, but it cannot be assumed therefrom that they are the only persons who are covered by the section. A tenant lawfully inducted by a mortgagee shall on redemption of the mortgage be deemed to be a tenant under the mortgagor.
10. "Lawfully cultivating" must have some foundation in a legal right to cultivate the property. Lawful cultivation cannot Be established without concomitant existence of a lawful relationship. Lawful cultivation must have origin in a legal right to cultivate the property. In the absence of any such right to cultivate, it cannot be said that merely because a person is cultivating the land he is held to be in lawful cultivation. A person who cultivates the land against the wishes of the owner cannot be said to be in lawful cultivation. Merely because no action is taken against him and he has continued to cultivate for a considerable period of time would not make his cultivation lawful. The essence of lawful cultivation is that one should enter possession of the land under some colour of right and cultivate the land as a matter of right, otherwise it cannot be said that he is in lawful cultivation of the land in question. Therefore, in the absence of any legal right a person who is cultivating the land cannot claim a status of deemed tenant under Section 4 of the Act.
11. Having regard to the admitted facts of this case and the earlier civil disputes between the parties, in our opinion, the dispute between the parties is not one arising out of agrarian relations. The scope of the Act is limited to questions arising out of agrarian relations. A person whose possession of agricultural lands does not rest on agrarian relations cannot invoke the jurisdiction of the Land Tribunal under Section 45 of the Act. The whole object of the tenancy laws is that the actual tiller of the land should not be evicted provided that the title of the actual tiller is derived from some legal incident and is not the result of an unlawful act.
12. In the instant case immediately after the execution of the gift deed on 17-1-1961 at the instance of the brothers Shivawwa instituted O.S. No. 275 of 1961 for cancellation of the gift deed on the ground of fraud and misrepresentation. The appellant is none other than the brother's son of the said Shivawwa and the alleged tenancy has come into existence after the commencement of the Us and therefore from the inception it is unlawful. Therefore, the appellant cannot be held to be in lawful cultivation of the land in question, as such he is not entitled to the benefit granted under Section 4 of the Act.
13. It is also relevant to point out at this stage that the deceased appellant had four sons. Three of them have been brought on record as his legal heirs who are prosecuting this appeal. His fourth son has been made as fifth respondent in this appeal. Fifth respondent also had made an application to come on record as legal representative of Shivawwa, the second respondent in the appeal. It is stated by him that Shivawwa took the son of the deceased appellant in adoption on 6-5-1968 under a registered deed dated 7-5-1968 and therefore he wants to come on record as the legal representative of the deceased Shivawwa. Opposing this application the first respondent has filed his objections. First respondent along with objections to the main appeal has produced a copy of the plaint filed by this alleged adopted son against the first respondent and the legal representatives of the deceased appellant in O.S. No. 20 of 2000 in which he is seeking a declaration that he is the owner of the land in question. In the body of the plaint he categorically states that he and deceased Shivawwa were in joint possession, cultivation and enjoyment of the suit properties as absolute owners till 23-1-1996 on which date Shivawwa expired. After the death of Shivawwa he has continued in exclusive possession of the suit property as an absolute owner till now. It is not in dispute that this alleged adopted son of Shivawwa is none other than the fourth son of the deceased appellant. This assertion in the plaint also clearly demonstrates that the case set up by the deceased appellant is false. Thus, it is clear a concerted attempt is made to defeat the just rights of the first respondent under the gift deed by invoking the aid of the provisions of the Act by creation of an adoption deed and by filing the suit referred to supra. Thus, they want to set at nought the effect of the judgment and decree passed by this Court in R.S.A. No. 28 of 1968 which was disposed of on 16-11-1971.
14. Therefore, the first aspect referred to by the Supreme Court is answered in the negative. In view of the finding on first aspect, namely, no tenancy was created by the first respondent in favour of the deceased appellant, the second aspect referred to by the Supreme Court do not arise for consideration.
15. Under the aforesaid circumstances, we find absolutely no merit in any of the contentions raised by the appellant. Accordingly, this writ appeal is dismissed. Parties to bear their own costs.