Karnataka High Court
Chikkanna Bin Rajegowda Since Deceased ... vs State Of Karnataka on 2 July, 2010
Equivalent citations: 2010 (4) AIR KAR R 75
Bench: Manjula Chellur, B.S.Patil
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 2ND DAY OF JULY 2019 7 .. PRESENT THE HONBLE MRS. JUSTICE c_.f+fE:1,I§R V AND THE HONBLE MR.'Jt§sIIcE"D.s.'pAT1L"*._;"" W.A.Nos..1629g39./3910' (LR) " -- BETWEEN: Chikkanna bin Raj_egQ_wda',A . . Since deceased 1. 9»-5 Smt. é W/0 Eate...Chi1gkaii;§;a. Aged ab0ut"?3.yeai':$. _ * ' Lingaraju. « V - V V ._ S/0 late Ghi1&;kafina.AA Aged ab0ut"44; 'years. Pr-errxa bin * ..... .. s V V' late Chilgkarina, _ Aged ..a'b.<;_)t1t. years. Nagalfajttibth late Chikka.iina. Aged abqut 23 years. " tfitiamegowda / c~Rajeg0wda, Since deceased by LRs. ' Smt. Kempamma Kom late Chamegowda. Aged about 62 years. Smt. Pramila Kom Govindaraju, Aged about 30 years. Devaraju bin Late Chamegowda, Aged about 28 years. 8. Ramesha bin [By Sri B.M.Krishna"Bhat,i'Ady'.).1 Late Channegowda, Aged about 26 years. All r/of Channahaili village 3 Srirangapatna Taluk, ' . E Mandya District. = ' AND: 1. State 0f.Karfiafaka,,__ _ ._ by Sec:i*etary' _v(}0\5§:.', _ y" Revenue 1:-)ep.2.1rt;;1'e.r'1'ty,_ M.S.Bui~lding, V ' ._ Bangalore-5 560001: ; = V Th¢«.1§éndy Tribi'1n.VaVl, _ Snrangapama Ta1u'k,"' 'V _ yiviandya, .4 _ I3y_its. S9_Creta;'y'.--.. l.\1iagegoyyda"i__b.fi1 Nirigegdwda ' V Since ~~deeeased by LRS: Puttamma kom 'late Ningegowda, Major, r/ of Channaha1liViHage v ...and ehannahalli post, Srirangapatna Taluk, Mandya District. ~~ ;._APPELLAN'I'S Ramalingegowda bin late Ningegowda Major, r/ of Channahalli village and Channahalli post, Srirangapatna, Mandya. Smt. Susheekamma kom Vishakantegowda, Major, r/ of Channahalli vi11age.'__. and Channahalli post, Srirangapatna, Mandya. Siddappa bin 7 late Ningegowda, " . Major, ;*/of Chaiinahalii mlxaége % and Channah_£:11}i":;p0st, =: = SIirangapa.t1'1:at__ ' ' Mandya. ' ' Sri Jajj/ararh'u.j'b_in 7'; ' late Ni'3:1geg0*.Vda,""- [ Major, r/of.channa;ha11;..yi11age and Cha1ir1taha11i"'p0St, = V Srira_11_gapat"1~1a,' , " Man_§dya'.. J avarappa _ I-ate' Niiigégdwda? " Maj Q1", V' 1'/of Chahnahalli village and V Chant:-ahéili post. Srifangapatha, Mana'ya;';. " Sf1é11karegowda bin 1ate--ANingeg0wda, Major, r/ of Channahalli village -and Channahalli post. Srirangapatna, Mandya. £0. 11. 12. 13. Mandya. Mahadevu bin late Ningegowda, Major, r/ of Channahalli village and Channahalli post, Srirangapatna, Mandya. Manjunatha bin late Ningegowda, Major, r/ of Channahalli village and Channahalli post, "' Srirangapatna, Mandya. Sri C.M.Gopala, S / 0 Marigowda, Major, r/ of C._h'annahal1i V and Channahalli pgfiét, '" Sriranggpatnet, " ' " Mandyae .;:_ Jatiaregbwria bin' .4 . D0ddak1y'deg0'v§rda',e " .. Major, 1'] of Chan"I*1.:_1haJIi~»v=Li1age and Channahalli 4Vp0st,"j. Sriranga"patna., ' 2 SITE lviadegewda bin " e_Jnavarego*"wda--.. ._ __§aj6rfr./ 0' .'1"1iripura village, ' yMahadevuapura Post, 'Srirztngagjatna, Mandjga. Javaregowda bin VV " 'I Intel Javaregowda Since deceased by LRS. Shivanna bin late Javaregowda, Major, Mahcievapura village, 16. 17. 18. __19. Srirangapatna, Mandya. Siddappa bin Javaregowda Major, r/ at Mahadevapura Village, Mahadevapura post, Srirangapatna, Mandya. Basavaraju bin J avaregowda, Major, r/ at Mahadevapura Vii§age_ Mahadevapura P0311," . Srirangapatna, Mandya. Chandra bin _J'aVare_;g'6i5Vda.; Major, r/at Mahadeirapura Viliagé' 2 .. Mahadey.apura_;_P_Qst, Srirangéipaifina, ' Ningcgowda 'bin Since dficeased .by*ALRs;;. Siifilitlegowda "'vLéit6:.A*--NiI1gegowda;""' 'V ' 2 _,NIa.j_or_r /ai~..Channahal1i " ivillagcy Channahalli post. V 20. Sfiranfgapaitiia, Mandya. "Chaxineggf6wda bin late Ningegowda, Maj0r';.r/ at Channahalli V in 'village, Channahalli post, " _ Szjirangapatna. Mandya. Smt. Ningamma Rom Late Ningegowda, Major r/ at Channahaili viilage, Channahalli post, Srirangapatna, Manclya. JUDGMENT
1. In these Writ appeals, order dated the learned Single Judge dismissing the writ petition appellants herein is challenged. liiwltlie. ' appellants herein had challenged thbegorcler dated passed by the Land Tribunal,' sowllarlllas related to the grant of ocvcupancy-rights'uingfavourvof respondent Nos.3 to9herein. ' if d l .A .
2. The disputgel' relates 1118 & 126 of Channahalli Taluk. Deceased "sons of Rajegowda filed applicationsein occupancy rights as tenants in respect of thes_e la_nds.'=_ petitioners/ appellants herein are "the rrepresentativves of the said Chikkanna and Tribunal granted occupancy rights in respect of i aeife 34ga_p.rEes in Sy.No.104 and 26 guntas in Sy.l\lo.104/2 to the petitioners. Different portions of lands comprised in these three "vsurvey numbers were granted in favour of the .___"'predecessors-in~title of private respondents herein, which they uhhad claimed. Aggrieved by the grant of occupancy rights in rmflzct of different portions of land in favour of other private respondents, the writ petitioners / appellants herein filed thegwrit petition only to the extent of rejection of their claim._....__J' »l
3. The main contention urged in the Writ petition that d the Land Tribunal committed an illegality» rights in favour of the respondents who-..claimpe'r;l,lA't'o tenants under the original tenantstillt was after V 02.10.1965, no tenancy eould haifel'-cpreatedV"'arid as such the persons who claimed as Sub-l;€1'18.I1tS could not be entitling for confirmation the provisions of the short the 'Act'). It was contendedthat the A--:_call'etl':'s2l1§)~tenants were only trespassers. It was atso conlteifiderlthlat respondent Nos.3 to 9 were not at all Vin. po'ssesis-ion-- and cultivation of any portion of the lands in qtiestioii. M ~
4. V_.~leavr1--1ed Single Judge has held that the minute '««_scrutiny"of__Athe records made by him revealed that the names of Rajegowda and Chamegowda (petitioners and their did not figure in column No.12 of the record of rights, insofar as lands in Sy.l\%os.1 18 & 126 were concerned. As far as the land bearing Sy.No.104, the learned Single Judge has held fie found in the record of rights for the years 1971-72, they will not get any right to seek occupancy rights. In this placed reliance on the judgments reported - BAKILANA Cl-IINNAPPA vs LAND TREBUNAL V AND OTHERS --- 1973(1) KLJ 75 and 1r.:KtVhe_Alc':;ise AG-ERA vs LAND TRIBUNAL. ANKoLA AND oT1e;Eas'§'ILR":1998'A' KAR 2381. He has also p1aced..lfirve1iance .oi1..Vthe.:§ following Judgments: . l l [i] VIMAL vs TRIBUNAL, BELf;}AiIjM AND. o';fH:ER"s gzoooxs) KLJ 426; [ii] NAIK vs THE LAND " "'rm1:3zJNAi;;AND.oa'HE1"zs'V»--' 1987(2) KLJ 337; {iii)"-_ BANG] {DEAD} THROUGH 'ms; Vs J DI AND OTHERS
-- A _ -- 1s'a9.8m« sec 294; and _ xii?) E'7"fsiIuAND°p_ ma-N lllll H vs 'rANA.J1-- 1975 {2} Km s.N.11. has oufjattention to Sections 21, 45, 46 and 49 of the Actfi Sri" Shashikiran Shetty, learned Counsel appearing for Nos.3, 12 to 15, 20 and 22 has strongly supported lfiorder passed by the Land Tribunal as affirmed by the , iyieamed Single Judge.
7. Having heard the learned Counsel for both partiesand on careful perusal of the entire materials on record. we admittedly respondent Nos.3 to 9 herein occupancy rights contending that they"iive*re «sub--_tr'-merits 'under the father of the petitioners. 'Ihoughu'«th:eylA'haye' clear terms as to from which yearpplthey have been s'uES4ten'ants,"' they have asserted that they haye*'bll:"en"cultivating. the land for the last 40 years. Counselua that it is sufficient for to the land as sulmtenants' lthewappointed date viz., 01.03.197,4i,..4.At~..any--:z;atei--..jitlis the sub-tenancy has originatedppxrior ., ' "l
8. The leamedv Si'rig1e._JsuAd~1g'e has not considered the question
-"'whethei11 sub-.t_e_nancy could have been created after has also not recorded a finding as to whether the'respondefitsfherein were sub-tenants prior to 02.10.1965. But, he proceeded on the basis of Section 49 of the Act and lltakirig-._sup'port from the Judgement reported in 2003 (4) KLJ 'Section 49 of the Act reads as under:
"49. Sub-tenants or tenants to be registered as occupants.» Where a tenant has lawfully sublet the land held by hirn, such sub--ter1ant of the land, shall. V to the exclusion of the tenant, to the extent subject to the conditions specified in Sections 45 46 be entitled to be registered as occupant 5' land of which he was a sub~tenant before T vesting. "
9. It is important to note from Section :49 of 'thatlon.l'y=.p in cases Where a tenant has 1a§VfaI13* sub1'et_ laindlheld by V him, such sub~tenant for registration of occupancy rights of which before the date of vesting. Atpstage. ..r.c1:evant to notice the provisions of the Act, which prohibit sub--1etting éiiiad lanc1's;"'ihe said provision reads as under:
-fsub-letting and assignment ..pCrohibited.'¥"{1)__No_sub-division or sub~letting of the .__"iondphe_ld._by a tenant or assignment of any interest s4ha_ll_1be valid:
'Provided that nothing in this subsection shall a_[}'ect:. the rights, if any, of a permanent tenant: Provided further that if the tenant dies.-
(i) if he is a member of joint family, the surviving members of the said family, and {ii} ij' he is not a member of a joint family, his heirs shall be entitled to partition and sub divide the land leased, subject to the following!» conditions. ~ la) each sharer shall hold his separate tenant;
(lo) the rent payable in respect of leased shall be apportioned ; arnong, "they V sharers, as the case may'be,?accord'ing" to the "
share allotted to therngy (C) the area allotted to sharetshali not less than a fra_gment;_____
(d) if such areafis less V th'an'a*fragment the sharers shall be .ientttled" to.yenj_oy' the income jointly,.but the land shall not divided by metes and bot§tnds;_:'; " ' regarding the a,i2,po;fti'z;s_nn1ent._V Of] rent payable by the
---- tsharer it'1s_:hail»--lbe--.dectded by the Tahsildar. .' question of law is involved the Tahsildarshabll' referritbbbto the Court. On receipt of sirch reference. nthekjoubrt shall, after giving notice to the; __yAV'pa_rtiesA «concerned, by the question as A e.xpediiiovus,ly as possible and record finding thereon
-.ja;id.fse;ilz same to the Tahsildar. The Tahsildar '' {give the decision in accordance with the saidfinding.
_ (2) Notwithstanding anything contained in subsection (1), it shall be lawful for a tenant who is a soldier in service in the Armed Forces of the Union or a searnan to sub-let the land held by him as a tenant.
tr {3} Notwithstanding anything contained in sub--section { 1}, it shall be lawful for a tenant to take a loan and mortgage, or create a charge on interest in the land in favour of the Government, [a financial institution, a co~o;§eratioe land development bank, a co~o_p.erative_--'soctety,I,V"'av"_' company as defined in Section[3 of..4th;je Act, 1956 in which not less than fgftg'---o.ne per_:cent'~of it the paid up share held by __the Government or a Coiporationpowined or controlled by the Central Govemrneitt 01.5 vState"Govemnient or both, for development 'ifr;propement of agricultural piracticesfl to any other remedy lauifih the event of pagrnent of such loan in accordance and conditions on which such it shall be lawful to cause inpterest-in: the to be attached and sold and '-the proceeds to beutilised in payment of such loan." clear from the provision contained in Section 21 that, enacted for sub--1etti:1g the land held by any tenant
- '««__exeept tperrnanent tenant. The proviso and the succeeding resections save assignment by way of partition and by certain it .oth__ér categories of tenants like a soldier, seaman or in respect of ~ , certain transactions of loan or mortgage executed in favour of Government or some Companies or Co--operative societies. Section 21 is in the statute book and has come into forcepwith effect from 02.10.1965. Therefore, it is clearw'ihatifgithe prohibition for sub--1etting the land is in 02.10.1965. If that be so, unless the V predecessor--in--title of the writ petitioners were =perrnane'nt_ tenants of the lands in question, could.not,ha,ve'~-siii:H'et the"
lands after 02.10.1965. The fac.t-s"as:*p'lea.ded dowriotiimake the proviso to sub--section (1) of to the present case. However, this regard at this stage. if sub--tenancy is created regarded as lawful in view of the Section 21.
11. Section of the._Vxx,fiich deals with deemed tenants will aaiso tales in its i'o1d..a.sub--tenant who is inducted contrary to Section "
12, TIMMAKKA KOM VENKANNA NAIK vs THE V V _LANn""*--*rRr}3t;1~3AL AND OTHERS --- 1987(2) KLJ 337 on which :95"-reliance is placed by the appellants, the provisions contained e.1_,1'r1r,V1VeI'Section 21(1) of the Act came up for consideration. The ljmquestion that arose was whether a tenant could bequeath his 0 " " right of tenancy in favour of a third party under a Will. This tr 16 Court having considered the effect of Section 45 and Section 21(1) of the Act has held in paragraph 12 that a tenanteannot assign his rights in the land to any other person bar enacted under Section 21 for subdivision of S the land held by him. It is held that the btirealnnot by a tenant even by creating a Will bec;3.us~e whathe "canlr10t*dlo'--..p during his lifetime cannot be hellCiat.o»be capal_bie."'of done' immediately after his deat;:lli;..g_Lik_e'i.2visee--,:ljinjthe case"'of'SANGAPPA KALYANAPPA BANG! (DEAD) tintotien I'.JRkVV$\;AA'>-:.{|~rV'$ LAND TRIBUNAL. J I '(1:f£"HER§$ -2. l1's9s(7§'_jseC '£94, explaining the effect of Sectijonlljyflll""o'i'--.__the:_g\c'ti .__il{1el"ldAp.eX Court held that the assignment of the tenanted land by a tenant even by wayRo_f Will cannot be held to be valid. In the t§ase.of BEERA AGERA vs LAND TREUNAL. ANKOLA 1998 KAR 2381. learned Single Judge of this Cour't.__hals under Section 45(1) of the Act a person V _cla_iming occupancy on the ground of being a st.1b~tenant can S.t1GC?_'€d only if he is able to show that the sub--letting in his e.fla'v.oui*-*vvas prior to 02.10.1965. It is further held that if the it :l_""s»ub~tenancy rights were acquired after the coming into force of " the provisions of the Act, the said sub--tenancy was hit by the provisions of Section 2}. which prohibited sub--letting. In our 33» View, the proposition of law regarding the prohibition of subw lease as enacted under Section 21(1) with effectfrfrom 02.10.1965 is rightly laid down in this decision.
13. In the instant case, the learned Single notw. noticed the effect of Section 21. Reliance:-placed» the Single Judge on the decision? in theocase JAYADEVARAO Vs THE LAND sins: UTTARA KANNADA msrmcr ANL'i_GTHEi§S:_ :2._Voo'3g4) 2339 is not apposite to the facts of said case, the effect of the proVi'sio'ns' contained 1indef'Se.ction 21(1) of the Act is not co1vivsidere*df;_V made therein to the effect that all that was considered was as to whether the sub~.~t_enant" vsfas..cu1tiVating the land as on 01.03.1974 or immediategr prior ther'e't'o,V are the result of non-consideration of thee. slijhflease under Section 21(1) of the Act and therefore thelliegarned Single Judge erred in placing reliance on said" Vjiidgment and in proceeding on the basis of the provisions of Section 49 without noticing the provisions [contained under section 21 (1) of the Act. » Insofar as the contention urged by the Counsel for the fillants on the basis of the judgment in the case of BAKILANA CI-IINNAPPA VS LAND TRIBUNAL MERCARA TALUK AND OTHERS
-- 1978(1) KLJ 75, that as per section 5 of the Act, "net can be created after 02.10.1965, it has to be statedithat 5 is substituted by the Amendment A'Ct§ Act No.1:.'ofi'V:.19f4--,ivitf1 effect from 10.03.1974. The prophibitilon creationof per Section 5 as substituted 0519740"?
stipulates that no tenancysh2d1"'be'p_:'created foriv-continued in respect of any land nor for any period after the date of Ameridfment Act except as provided in" clear that the bar enacted for th.e'VAVc~ryeati:}An._of. effect from the date of commencement Act ie, with effect from O1.03.1974.V"T1"hofu§h_ yvas similar provision in the _._unamended Sectionifi as enacted by the Land Reforms Act, in the substitution of new Section 5 making it cleali'-f'.,tl1at 'tenancy shall be created after the date of
--comIn\encetnen"t of the Amendment Act read along with the uV'A44"'definitionVVof the term 'Tenant; under Section 2(34} of the Act .'_p1a:o"dcoiipled with Sections 45 and 44 of the Act, it is clear that mideven a tenant who is inducted as such after 02.10.1965 and it "immediately prior to 01.03.1974 is entitled for grant of occupancy rights. in fact, the definition clause under 4 Section 2(34) of the Act includes as per sub--clause (ii--a} a person Wh0 cultivates personally any land on lease created contrary to the provisions of Section 5 and beforevyythelglldatel commencement of the Amendment Act. it is thus contention urged by the Counsel formlthe. appellants tenancy can be created after "
1:} misconceived. At any rate, in thisdcase, We are "notgconclem.edV' with the creation of tenancy&y.i'aftepr-- 'a0-2_.l0.l96-5. We are concerned with the creationVlo.f"uLAS already held by us, no sub«~tenancy:'ca_n v'O2lVl0.1965 except as permitted and by'«.:_pr_ov.iso-"td_Sub~Seetion (ll of Section 21 in of thellprohibtiltion"contained under section 21(1) of the Act.
__i5. instaiiticasei, the Tribunal has not gone into the Vquestion _W'}j1c31'u1."'~~lLlf1(3 sub»tenancy was created in favour of respondent 9. It has simply held that as respondent V .Nos.3ll"t0 9'----vl7l'ere found to be sub«~tenants as on 01.03.1974» they I,"'\=qe11=e.sentitled for grant of occupancy rights. The Tribunal ought torecorded a finding as to whether the sub~tenancy was llulcreated prior to 02.10.1965. In the absence of such a finding, it " 'the order passed by the Tribunal cannot be sustained. as 20
14. In the light of the above discussion, we are of the---.»view that these appeals deserve to be allowed. Accordinglsf; the following:
(i) The Writ appeals are allovved.l1'--_lfl'l*1e drape:-.pas's§a.
the learned Single set aside:
(ii) The writ petition s&etti*ngA~'Vaside the order dated by the Land Tribunal impugned-.in the Vvt*.i,tVpeti'tion insofar as it-
relat-es"t1.o:p1'theggrantbf rights in favour of ' (111) as" the Tribunal for fresh :vv--Aconsidero:tion»a,ir1=.aaVCcordance with law and in the lightof the made herein above.
Sd/-* JUDGE Sd/-* JUDGE