Karnataka High Court
Balu Gopal Desai (Since Deceased By ... vs The State Of Karnataka By Its Secretary ... on 21 November, 2005
Author: K. Ramanna
Bench: K. Ramanna
ORDER K. Ramanna, J.
1. This is the second round of litigation fought between the deceased petitiotenant and the deceased Respondent No. 3 and his L.rs. The deceased petitioner Balu Gopal Desai who filed this writ petition challenging the impugned order dated 7/9/1996 passed by the 2nd respondent, in Case No. TNC.SR:1941 at Annexure-C, whereby the Land Tribunal Respondent No. 2 rejected Form No. 7 filed by the deceased petitioner to confirm occupancy rights in respect of land Sy.No. 106 old Sy.No. 85/2 measuring 10 acres 25 guntas of Hadalga village in Hukkeri Taluka, mainly on the ground that the order of rejection of declaration filed by the deceased petitioner in Form No. 7 filed under Section 48A of Karnataka Land Reforms Act is contrary to law and evidence on record. The Land Tribunal has failed to appreciate the documentary evidence borne by record of rights and other revenue records to show that he was a tenant and tenancy of the deceased petitioner was uninterrupted since many years and as on 5/3/1974 and later. The finding of the Land Tribunal that there was surrender of land by the tenant is totally misunderstood in view of the clear position of law regarding continued tenancy. That apart the tenant has established beyond doubt that the possession was not delivered by the deceased petitioner at any point of time. The proceedings noted are without jurisdiction since it is below the rank of Mamaltdar under B.T.A.L. Act. The order of the Land Tribunal is a nullity since Vasant Rao s/o Laxmibai died during the pendency of the application. Therefore, the order cannot be sustained in the eye of law. A dead person cannot be a party to the proceedings. The best evidence on behalf petitioner placed on record is rent recovery and presumed continued tenancy. The ground of surrender is not even examined regarding competency and its validity. There was no delivery of possession both on admission by landlord and rent recovery proceedings. Hence this writ petition.
2. Heard the arguments of learned Counsel for L.Rs of deceased petitioner, L.Rs of deceased Respondent No. 3 and learned High Court Government Pleader for Respondents-1 and 2.
3. During the course of argument, Sri Ravi S. Balikai learned Counsel for L.Rs of petitioner submitted that the deceased Balu Gopala Desai was a tenant under Sanjay Vasantrao Joshi in respect of land Sy.No. 106 old No. 85/2 measuring 10 acres 25 guntas of Hadalga village Hukeri Taluk. The three documents produced by the deceased petitioner before the Land Tribunal disclose that he was cultivating the land as a lawful tenant much prior to 1956 and he was paying necessary rents; land revenue records and entries in the Record of Rights disclose that deceased petitioner Balu Gopal Desai was a lawful tenant and that he never surrendered the said land and he was not aware of any order passed by Tashildar, A.K. Hukeri on 22/11/1956 in TNC suit No. 708/56. Therefore, the order passed by the Land Tribunal that the father of the deceased petitioner had already surrendered the land way back in the year 1956 is incorrect. It is contended that in 1956 there are entries in the record of rights. The land revenue receipts clearly disclose that late Balu Gopal Desai was in possession and enjoyment of the said land. Further, it is submitted that Venkatesh Hari Joshi of Bhairapur had initiated rent recovery proceedings against deceased petitioner before the authority concerned for recovery of rents for the year 1970-71 and so that itself discloses that even after 1956 to 1970 the very deceased Respondent No. 3 himself initiated rent recovery proceedings stating that deceased petitioner was due in a sum of Rs. 1940/- as rent for the year 1970-71. Therefore, neither the deceased petitioner nor his L.Rs were dispossessed from the possession and they are in possession of the said lands. Therefore, the impugned order passed by the Land Tribunal on the basis of the majority opinion of the members is not a speaking order, no proper reasons are assigned to come to such a conclusion and the documents produced by the deceased petitioner has not been looked into and referred by the Land Tribunal, therefore the impugned order under challenge is to be set aside. Further it is contended by the learned Counsel for the petitioner that even if the land has been surrendered by the tenant, if he continues to be in possession of the land immediately prior to 1/3/74 without dispossession, that the occupancy rights should be confirmed. But in the instant case, it is contended that the Land Tribunal has not followed the procedure as contemplated and the evidence lead by both the parties has not been considered. Hence the impugned order under challenge is liable to be set aside/quashed. In support of his contention learned Counsel for the petitioner relied on a decision Note A (Ramchandra Keshav Adke (Dead) By L.Rs v. Govind Joti Chavare and Ors.), which reads as under:
Head Note A: Bombay Tenancy and Agricultural Lands Act (67/48) (as amended in 1952) Section 5(3)(b) - Bombay Tenancy & Agricultural Lands Rules (1956) Rule 2-A Surrender by tenant-Requirements-Provisions are mandatory and not directory-Non-compliance-Effect-Verification-non-recording of satisfaction by authority-surrender vitiated.
And also another decision reported in 1980(1) KLJ 281 (Putta Gowda. v. State and Ors.), wherein it has been held as follows:
Where even after order permitting surrender registered in 1965 a tenant was in possession he must be held or deemed to be a tenant granted occupancy rights. Mere permission to surrender without delivery of it does not apprehend the relationship of landlord and tenant delivery of possession by the tenant to the landlady is acceptance from the possession or initiated to effect to surrender.
3. On the other hand learned High Court Government Pleader for Respondents-1 and 2 submits that since the land in question has been surrendered by the deceased petitioner/applicant and to that effect, an order has been passed on 22/11/1956 and many of the members opined that the land has already been surrendered much prior to 1/3/74 and the Tribunal was right in rejecting the application filed by the deceased petitioner for grant of occupancy rights. Therefore, the impugned order does not suffer from any infirmity and the present writ petition is to be dismissed.
4. I have carefully examined the material placed on record. Deceased petitioner Balu Gopal Desai filed Form No. 7 on 29th July 1976 to confirm occupancy rights in respect of the land bearing Sy.No. 106 of Hadalaga village, Hukkeri taluk measuring 10 acres 25 guntas. The respondents-2 to 4 have not disputed that the deceased applicant Balu Gopal Desai was a tenant and cultivating the land as a tenant on payment of rents. Of course up to 1956 the record of rights produced disclose the name of deceased petitioner as a tenant. So, even after 1956 his name continues in Column No. 12(2) of ROR and the mode of cultivation is shown as '3'. Land Revenue receipts produced by him also disclose that he was paying the rents and Land revenue to the Revenue Authorities. The contention of the learned Counsel for the L.Rs of the deceased petitioner is that the landlord was not in the habit of issuing rent receipts. It is seen that for the year 1956 the deceased respondent No. 3 filed a suit O.S.No. 708/56 on 22/11/1956 under Section 29(2) read with Section 5(3)(b) of Bombay Tenancy and Agricultural Land Act 1948 and with a prayer for possession of the said land and Balu Gopal Desai was arrayed as defendant in the suit in respect of the land Sy.No. 85/2 measuring 10 acres 33 guntas out of which 2 guntas was Karab land. After hearing, the Tahsildar, A.K. Hukkeri passed an order stating that the possession of the suit land should be restored to the plaintiff-Venkatesh Hari Joshi and that the name of the tenant be expunged from record of rights. In para 2 of the order, it has been mentioned that the defendant admits having voluntarily surrendered the lease in favour of the landlord and Rajinama tendered by him is at Ex.P1B. But, after passing the impugned order there is no material documents produced by the deceased Respondents 2 to 4 to show that they have taken possession of the land from the deceased petitioner. In fact the very deceased Respondent No. 3 himself initiated rent recovery proceedings in R.R.C. 386/72 under Rule 16 and Section 42 of the Mysore Land Reforms Act 1961 for payment of rents for the year 1970-71. Accordingly the said Rent Recovery proceedings carne to be allowed by order dated 17/6/1972 directing the deceased Petitioner Babu Gopal Desai to pay a sum of Rs. 1940/- being the value of 1/5th share payable by him. This clearly indicates that even after passing the order dated 22/11/1956, the deceased/Respondent-3 initiated rent recovery proceedings in the year 1970-71 from the deceased petitioner. Therefore, the contention of the learned Counsel for Respondent-3 that he was not aware of passing of the said rent recovery proceedings cannot be accepted. It is a public document and the same cannot be disputed. Apart from that, the deceased Respondent No. 3 also produced a licence issued by the Central Excise Authority to raise tobacco in the land old Sy.No. 85/2. This fact has not been seriously disputed by deceased Respondent No. 3 or their LRs 3(a) to 3(d). Apart from that Respondent-3 also produced several land revenue receipts right from the year 1956 and earlier. Deceased petitioner was paying rent to the landlord and land revenue to the Revenue Authority and they were confined to Katha No. 28 by the Revenue Authority which indicates that the deceased petitioner was cultivating the land as a tenant. Some rent receipts were produced which are in Marati language. This clearly indicates that deceased petitioner was not dispossessed from the land under due process of law and deceased Respondent-3 has not taken any steps to take possession of the land from the deceased petitioner even though the order is passed by the Taluka A.K. Hukeri on 22/11/1956 considering the fact that deceased petitioner was a lawful tenant much prior to 1/3/1974. Though the Chairman of the Land Tribunal was in favour of the deceased petitioner to confirm occupancy rights, but, majority of the members was of the opinion that deceased petitioner has already surrendered the land in 1956. But any order passed by the majority of the members without assigning any reasons is liable to be quashed and it is not a speaking order. Statements of the parties have been recorded by the Land Tribunal and the parties cross-examined. In the cross-examination the deceased Respondent-3 clearly admitted that he was not in possession and he has not taken possession of the said land after 1956. Petitioner was allowed to continue in possession and he was regularly paying land revenue to the authorities concerned. Hence, the impugned order under challenge passed by the Land Tribunal is liable to be set aside/quashed.
Accordingly, the writ petition is allowed. The impugned order dated 07-09-1996 passed by the second respondent which is under challenge is hereby quashed and the matter is remitted back to the Land Tribunal, with a direction to hear the arguments of both the parties and after making spot inspection in the presence of both parties, dispose of the case in accordance with law.