Karnataka High Court
Ganesh Shamji Joshi vs The Land Tribunal Hukeri on 20 December, 2013
Author: Ravi Malimath
Bench: Ravi Malimath
:1:
IN THE HIGH COURT OF KARNA TAKA
DHARWAD BENCH
ON THE 20 T H DAY OF DECEMBER 2013
BEFORE
THE HON'BLE MR.JUS TICE RAVI MALIMATH
WRIT PETITION NO.40069/1993 ( KLRA)
C/W.
WRIT PETITION NO.29211/2001 ( KLRA)
WRIT PETITION NO.4690/2001 (KLRA)
IN W.P.NO .40069/1993
BETWEEN:
1. GANESH SHAMJI JOSHI
AGE: MAJOR, R/O.YELIMUNOLI,
TQ: HUKKERI, DIST: BELGAUM
(SINCE DECEASED, BY HIS L.RS .)
1(A) SMT.SHOBHA @ VIJAYALAXMI
W/O.GANESH JOSHI
AGE: 65 YEARS , OCC: AGRICULTU RE,
R/O.YALIMUNOLI, TQ: HUKKERI,
DIST: BELGAUM.
1(B) RAJU S/O.GANESH JOSHI
AGE: 41 YEARS , OCC: AGRICULTU RE,
R/O.YALIMUNOLI, TQ: HUKKERI,
DIST: BELGAUM.
1(C) RAGHAVENDRA S/O.GANESH JOSHI
AGE: 39 YEARS , OCC: AGRICULTU RE,
R/O.YALIMUNOLI, TQ: HUKKERI,
DIST: BELGAUM.
1(D) SMT.KANCHANA D/O.GANESH JOSHI
AGE: 39 YEARS , OCC: HOUSEHOLD WORK
AND AGRICULTURE,
:2:
R/O.YALIMUNOLI, TQ: HUKKERI,
DIST: BELGAUM.
(SINCE DECEASED, BY HER L .RS.)
1(D)(I) AWADHOOT S/O .PURUSHOTTAM VASHTA
AGE: 37 YEARS , OCC: SERVICE,
R/O.HARALI, TQ: GADHINGLAJ,
DIST: KOLHAPUR, (MAHARASHTRA).
1(D)(II) SRINIVAS AVADHOOT VASHTA
AGE: 4 YEARS , M INOR,
R/BY M/G FA THER PETITIONER NO.1(D)(I)
AWADHOOT S/O .PURUSHOTTAM VASHTA
AGE: 37 YEARS , OCC: SERVICE,
R/O.HARALI, TQ: GADHINGLAJ,
DIST: KOLHAPUR, (MAHARASHTRA).
2. SMT.RUKMINIBAI ALIAS VITHABAI
W/O.KRISHNARAO JOSHI
AGE: MAJOR,
R/O. YADGUD, TQ: HUKKERI,
DIST: BELGAUM.
(SINCE DECEASED, BY HER L .RS,
RESPONDENTS 5 TO 10.)
3. SMT.KAMALABAI W/O .SRINIVAS PA TIL
AGE: MAJOR,
R/O.HUKERI, D IS T: BELGAUM.
4. SMT.SARALA ALIAS SHUBHANGI
W/O.RAMCHANDRA PA TIL
AGE: MAJOR,
R/O. SAPTSAGAR, TQ : A THANI,
DIST: BELGAUM.
...PETITIONERS .
(BY SRI RA VI S. BALIKAI, ADVOCA TE.)
AND:
1. THE LAND TRIBUNAL, HUKERI,
BY ITS CHAIRMAN, HUKERI,
DIST: BELGAUM.
:3:
2. THE S TA TE OF KARNA TAKA,
BY ITS SECRETARY TO TH E
REVENUE DEPARTMENT,
M.S.BUILDING, BANGALORE-1.
3. BABU S/O.BASAPPA GIRIGOUDA-PATIL
AGE: MAJOR,
R/O.YELIMUNOLI, TQ : HUKERI,
DIST: BELGAUM.
4. THE TAHSILDAR, HUKERI,
TQ: HUKERI, D IS T: BELGAUM.
5. SMT.SUMITRA
W/O.RAMACHANDRA SABANIS
AGE: 64 YEARS , OCC: HOUSEHOLD,
R/O. HALLADKERI ONI,
HUKERI-591309, DIS T: BELGAUM.
6. SMT.SHAKUNTALA W/O.RAMESH
KULKARNI
AGE: 60 YEARS , OCC: HOUSEHOLD,
R/O. HALLADKERI ONI,
HUKERI-591309, DIS T: BELGAUM.
7. SMT.VIDYA W/O.VINAY DANDAGE
AGE: 54 YEARS , OCC: HOUSEHOLD,
R/O. YAMAKANAMARDI-591245,
TQ: HUKERI, D IS T: BELGAUM.
8. SMT.KALPANA W/O.MANOHAR KULKARNI
AGE: 48 YEARS , OCC: HOUSEHOLD,
R/O. KAVA TAGIMATH NAGAR (NORTH),
CHIKODI-591201, DIS T: BELGAUM.
9. SMT.ALKA W/O.NEELAKANTH YAKKUNDI
AGE: 41 YEARS , OCC: HOUSEHOLD,
R/O. AKKOL-591211
TQ: CHIKODI, DIST: BELGAUM.
10. ANANT S/O. KRISHNAJI JOSHI
AGE: 52 YEARS , OCC: SERVICE,
R/O. 'ABHINANDAN', 4 T H MA IN,
:4:
1 S T CROSS, GANDHINAGAR,
DHARWAD-580004.
...RESPONDENTS
(BY SRI B.S.KAMATE, ADVOCATE, FOR R.3,
SRI VINAYAK S. KU LKARNI, HCGP, FOR R.1, R.2 AND
R.4,
R.5 TO R.10 ARE SERVED THROUGH HAND SUMMONS.)
THIS PETITION IS F ILED UNDER SECTIO N 17 OF
THE KARNA TAKA LAND REFORMS, AMENDMENT ACT,
1990 READ WITH S ECTION 151 OF C.P.C. AND UNDER
ARTICLES 226 & 227 OF THE CONS TITU TION OF IND IA,
PRAYING TO CALL FOR AND EXAMINE TH E ENTIRE
RECORDS IN R.A .NO.17/1989 PENDING BEFORE THE
ADDITIONAL DIS TRICT APPELLA TE AUTHORITY, LAND
REFORMS, CHIKODI, AND TREA T THE SAID APPEAL AS
WRIT PETITION AND THE SAID WRIT PETITION BE
HEARD AND DECIDED ON MERITS AND ALLOW AS
PRAYED FOR BY THE PETITIONERS, ETC.,.
IN W.P.NO .29211/2001
BETWEEN:
1. SMT. KASHAVVA
W/O. RAMAPPA GIRIGOUDA PATIL
AGE: MAJOR, OCC: AGRICULTURE
R/O. YALIMUNOLI,
TALUK HUKERI, D IS T: BELGAUM
2. DUNDAPPA RAMAPPA GIRIGOUDA PATIL
AGE: MAJOR, OCC: AGRICULTURE
R/O. YALIMUNOLI, TALUK: HUKERI,
DIST: BELGAUM
3. MALLAPPA RAMAPPA GIRIGOUDA PATIL
AGE: MAJOR, OCC: AGRICULTURE
R/O. YALIMUNOLI, TALUK: HUKERI,
DIST: BELGAUM
4. KUMAR VIRUPAXI GIRIGOUDA PATIL
AGE: MAJOR, OCC: AGRICULTURE
:5:
R/O. YALIMUNOLI, TALUK: HUKERI,
DIST: BELGAUM
5. KUMAR KEMPANNA RAMAPPA GIRIGOUDA PATIL
AGE: MAJOR, OCC: AGRICULTURE
R/O. YALIMUNOLI, TALUK: HUKERI,
DIST: BELGAUM
...PETITIONERS .
(BY SRI M.G .NAGANURI, ADVOCATE.)
AND:
1. THE S TA TE OF KARNA TAKA
BY ITS SECRETARY TO TH E
REVENUE DEPARTMENT
VIDHANA SOUDHA, BANGALORE.
2. THE LAND TRIBUNAL
HUKERI, BY ITS CHAIRMAN
3. GANESH SHAMOJI JOSHI
AGE: MAJOR, OCC: S ERVICE
R/O. YELIMUNOLI, TA LUK: HUKERI
DIST: BELGAUM
SINCE DECEASED, BY HIS L.RS.
3A. SMT. SHOBHA W/O.GANESH JOSHI
AGE: 65 YEARS , OCC: HOUSEHOLD,
R/O. YELIMUNOLI-591309,
TQ: & D IS T: BELGAUM.
3B. SRI RAJU GANESH JOSHI
AGE: 40 YEARS , OCC: AGRICULTU RE,
R/O. YELIMUNOLI-591309,
TQ: & D IS T: BELGAUM.
3C. SRI RAGHAVENDRA GANESH JOSHI
AGE: 37 YEARS , OCC: SERVICE,
R/O. YELIMUNOLI-591309,
TQ: & D IS T: BELGAUM.
:6:
3D. KANCHANA D/O. GANESH JOSHI
AGE: 35 YEARS , OCC: HOUSEHOLD,
R/O. YELIMUNOLI-591309,
TQ: & D IS T: BELGAUM.
SINCE DECEASED, BY HER LRS.
3(D)(I) AWADHOOT S/O .PURUSHOTTAM VASHTA
AGE: 37 YEARS , OCC: SERVICE,
R/O.HARALI, TQ: GADHINGLAJ,
DIST: KOLHAPUR, (MAHARASHTRA).
3(D)(II) SRINIVAS AVADHOOT VASHTA
AGE: 4 YEARS , M INOR,
R/BY M/G FA THER PETITIONER NO.1(D)(I)
AWADHOOT S/O .PURUSHOTTAM VASHTA
AGE: 37 YEARS , OCC: SERVICE,
R/O.HARALI, TQ: GADHINGLAJ,
DIST: KOLHAPUR, (MAHARASHTRA).
4. SMT. VITHABAI ALIAS RUKUMINI BAI
W/O. KRISHNARAO JOSHI
AGE: MAJOR, R/O. YADGUD,
TALUK HUKERI, D IS T: BELGAUM
SINCE DECEASED, BY HIS L.RS
4A. SMT.SUMITRA W/O.RAMCHANDRA SABNIS
AGE: 64 YEARS , OCC: HOUSEHOLD,
R/O. HALLADKERI ONI, HUKKERI-591309,
DIST: BELGAUM.
4B. SMT. SHAKUNTALA W/O.RAMESH KULKARNI
AGE: 60 YEARS , OCC: HOUSEHOLD,
R/O. HALLADKERI ONI, HUKKERI-591309,
DIST: BELGAUM.
4C. SMT. VIDYA W/O.VINAY DANDAGE
AGE: 54 YEARS , OCC: HOUSEHOLD,
R/O. YAMAKANMARADI-591245,
TQ: HUKERI, D IS T: BELGAUM.
4D. SMT.KALPANA W/O.MANOHAR KULKARNI
AGE: 48 YEARS , OCC: HOUSEHOLD,
R/O. WADA GALLI, CHIKODI-591201,
DIST: BELGAUM.
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4E. SMT. ALKA W/O .NEELKHANTH YAKKUNDI
AGE: 41 YEARS , OCC: HOUSEHOLD,
R/O. AKKOL, TQ : CHIKODI,
DIST: BELGAUM.
4F. SRI ANANT KRISHNAJI JOSHI
AGE: 52 YEARS , OCC: SERVICE,
R/O. YADAGUD-591253,
TQ: HUKERI, D IS T: BELGAUM.
5. SMT. KAMALABAI
W/O. SRINIVAS PATIL
AGE: MAJOR, R/O. HU KERI
DIST: BELGAUM
6. SHUBHANGI ALIAS SARALA
W/O. RAMCHANDRA PATIL
AGE: MAJOR, R/O. SUPTASAGAR
TALUK A THENI, DIS T: BIJAPUR
...RESPONDENTS
(BY SRI VINAYAK S. KULKARNI, HCGP, FOR R.1 AND
R.2,
SRI RAVI S . BALIKAI, ADVOCATE, FOR R.3D(I), R.3D(II),
AND R.5,
R.3A , R.3B, R.3C, R.3D, R.4A, R.4B, R.4C, R.4D , R.4E
AND R.6 ARE SERVED,
R.4F - SERVICE HELD SUFFICIENT.)
THIS PETITION IS F ILED UNDER SECTIO N 17 OF
THE KARNA TAKA LAND REFORMS, AMENDMENT ACT,
1990 READ WITH S ECTION 151 OF C.P.C. AND UNDER
ARTICLES 226 & 227 OF THE CONS TITU TION OF INDIA,
PRAYING TO CALL FOR AND EXAMINE TH E ENTIRE
RECORDS IN R.A .NO.17/1990 PENDING BEFORE THE
ADDITIONAL DIS TRICT APPELLA TE AUTHORITY ( LAND
REFORMS), CHIKODI, AND TREA T THE SAID APPEAL AS
WRIT PETITION AND THE SAID WRIT PETITION BE
HEARD AND DECIDED ON MERITS AND ALLOW AS
PRAYED FOR BY THE PETITIONERS, ETC.,.
:8:
IN W.P.NO .4690/2001
BETWEEN:
1. GANESH S/O. SHAMJI JOSHI
MAJOR, R/O. YELIMUNOLKI
TQ: HUKERI, D IS T: BELGAUM
1(A) SMT.SHOBHA @ VIJAYALAXMI
W/O.GANESH JOSHI
AGE: 55 YEARS , OCC: AGRICULTU RE,
R/O.YALIMUNOLI, TQ: HUKKERI,
DIST: BELGAUM.
1(B) RAJU S/O.GANESH JOSHI
AGE: 41 YEARS , OCC: AGRICULTU RE,
R/O.YALIMUNOLI, TQ: HUKKERI,
DIST: BELGAUM.
1(C) RAGHAVENDRA S/O.GANESH JOSHI
AGE: 39 YEARS , OCC: AGRICULTU RE,
R/O.YALIMUNOLI, TQ: HUKKERI,
DIST: BELGAUM.
1(D) AWADHOOT S/O .PURUSHOTTAM VASHTA
AGE: 37 YEARS , OCC: SERVICE,
R/O.HARALI, TQ: GADHINGLAJ,
DIST: KOLHAPUR, (MAHARASHTRA).
1(E) SRINIVAS AVADHOOT VASHTA
AGE: 4 YEARS , M INOR,
R/BY M/G FA THER PETITIONER NO.1(D)
AWADHOOT S/O .PURUSHOTTAM VASHTA
AGE: 37 YEARS , OCC: SERVICE,
R/O.HARALI, TQ: GADHINGLAJ,
DIST: KOLHAPUR, (MAHARASHTRA).
2. SMT. RU KMINIBA I @ VITHABAI
W/O. KRISHNARAO JOSHI
MAJOR, R/O .YADGUR,
TQ: HUKERI, D IS T: BELGAUM
(DELETED, VIDE COURT ORDER DATED
19.12.2013.)
:9:
3. SMT. KAMALABAI W/O. SRINIVAS PA TIL
MAJOR, R/O. HUKERI, DIS T: BELGAUM
4. SMT. SARALA @ SHUBHANGI
W/O. RAMCHANDRA PATIL
MAJOR, R/O. SAPTASAGAR
TQ: A THANI, DIS T: BELGAUM
...PETITIONERS .
(BY SRI RA VI S. BALIKAI, ADVOCA TE.)
AND:
1. THE LAND TRIBUNAL, HUKERI
BY ITS CHAIRMAN, HIKERI,
DIST: BELGAUM
2. THE S TA TE OF KARNA TAKA
BY ITS SEC TO REVENUE DEPARTM ENT,
M S BUILDING, BANGALORE
3. BABU S/O. BASAPPA GIRIGOUDA PATIL
AGE: MAJOR, R/O YELIMUNOLI
TQ: HUKERI, D IS T: BELGAUM
4. THE TAHSILDAR, HUKERI,
TQ: HUKERI, D IS T: BELGAUM
...RESPONDENTS
(BY SRI VINAYAK S. KULKARNI, HCGP, FOR R.1, 2
AND 4,
SRI B.S .KAMATE, ADVOCATE, FOR R.3.)
THIS PETITION IS F ILED UNDER SECTIO N 17 OF
THE KARNA TAKA LAND REFORMS, AMENDMENT ACT,
1990 READ WITH S ECTION 151 OF C.P.C. AND UNDER
ARTICLES 226 & 227 OF THE CONS TITU TION OF INDIA,
PRAYING TO CALL FOR AND EXAMINE TH E ENTIRE
RECORDS IN R.A .NO.18/1989 PENDING BEFORE THE
ADDITIONAL DIS TRICT APPELLA TE AUTHORITY, LAND
REFORMS, CHIKODI, AND TREA T THE SAID APPEAL AS
WRIT PETITION AND THE SAID WRIT PETITION BE
: 10 :
HEARD AND DECIDED ON MERITS AND ALLOW AS
PRAYED FOR BY THE PETITIONERS, ETC.,.
THESE PETITIONS COMING ON FOR FINA L
HEARING, THIS DAY , THE COURT MADE THE
FOLLOWING:
ORDER
The lands in question are Sy.No.357, measuring 13 acres 1 gunta and Sy.No.358, measuring 1 acre 18 guntas, situated at Yalimunoli village, Hukkeri Taluka, Belgaum District. One Basappa Laxman Girigouda Patil @ Girigoudanavar filed an application in Form No.7 on 21.8.1974, claiming occupancy rights for both the survey numbers. One Ramappa Laxman Girigouda Patil filed Form No.7 on 5.12.1978, claiming occupancy rights with respect to Sy.No.357 to an extent of 5 acres 27 guntas. Babu Basappa Girigouda Patil, the son of Basappa Laxman Girigouda Patil also filed Form No.1 on 20.1.1981, seeking occupancy rights with respect to Sy.No.357 to an extent of 13 acres 1 gunta. : 11 : Ganesh Shamji Joshi filed Form No.1 on 31.12.1979, claiming occupancy rights with respect to Sy.No.357, measuring 5 acres 27 guntas. That R.S.No.357 is said to be a 'Devasthan Inam Land'. However R.S.No.358 claimed to be the land of Ganesh Shamji Joshi. That Sri Ganesh Shamji Joshi was rendering religious services to the Deity in Shri Ramalingesh war Devasthan. He used to perform daily 'Abhishek' to the said Deity. In view of the services being rendered, the petition land namely R.S.No.357 was given to his family in the year 1830 with a condition that the land should not be alienated at any time by him or by his family. That he is in possession of the said land all along. That the land bearing R.S.No.357 is under his ownership and possession. Therefore he is entitled for grant of occupancy rights he being vahivatdar of the said title. The other persons also filed Form No.1 as narrated hereinabove. All the applications : 12 : were considered together. By the order dated 24.3.1977, occupancy rights were granted to Basappa and Ramappa jointly, since the claim of Babu being the son of Basappa, was for the same extent. Aggrieved by the same, Ganesh Shamji Joshi filed W.P.No.8966/1977, wherein the writ petition was allowed. The order impugned therein was set aside and the matter was remanded to the Tribunal for fresh enquiry. On remand, the Tribunal, by its order dated 15.3.1989 rejected the Form No.7 of Ramappa. It granted occupancy rights to an extent of 10 acres in R.S.No.357 and to an extent of 1 acre 18 guntas in Sy.No.358 to Babu Basappa, since by then Basappa, his father had died. The remaining extent of land i.e., to an extent of 3 acres 1 gunta in Sy.No.357 was rejected by the Land Tribunal on the ground that the land is uncultivable, since the land has not been cultivated. Aggrieved by the said order, Ganesh Shamji Joshi filed R.A.Nos.17 and 18 of : 13 : 1989 questioning the grant of occupancy rights. The L.Rs of Ramappa filed R.A.No.17/1990. On the abolition of the Land Reforms Appellate Authority, the same were transferred as Civil Petition Nos.6846 and 6847 of 1991 so far as Ganesh Shamji Joshi is concerned, and Civil Petition No.1988/1991 so far as the L.Rs of Ramappa is concerned. Thereafter the petitions were renumbered. Civil Petitions of Ganesh Shamji Joshi were renumbered as W.P.Nos.40069/1993 and 4690/2001. The Civil Petition of the L.Rs of Ramappa was renumbered as W.P.No.29211/2001. Since all the petitions arise out of the same impugned order, at request, they are taken up together for disposal.
2. Sri Ravi Balikai, learned counsel appears for the petitioners in W.P.No.40069/1993 and W.P.No.4690/2001 and for respondents 3(d)(1), 3(d)(2) and 5 in W.P.No.29211/2001. He : 14 : contends that the impugned order is bad in law and liable to be set aside. That the Tribunal committed an error in granting occupancy rights to Basappa. That the material and evidence on record has been misunderstood. That there is no application of mind.
3. On the other hand, Sri M.G.Naganuri, learned counsel appears for the petitioners in W.P.No.29211/2001 namely the L.Rs of deceased Ramappa. He contends that the Tribunal committed an error in rejecting his plea for grant of occupancy rights. That substantial material has been placed by him to grant occupancy rights. His further contention is that the finding of the Tribunal that in 3 acres of land, grass grows without cultivation and therefore there could be no claim of occupancy rights is erroneous. Hence he pleads that the petition be allowed by granting him occupancy rights.
: 15 :
4. Sri B.S.Kamate, learned counsel appearing for respondent No.3 in W.P.No.40069/1993 and respondent No.3 in W.P.No.4690/2001, supports this impugned order.
5. Learned Government Pleader supports the impugned order.
6. Heard learned counsels and examined the records.
7. The undisputed facts are that R.S.No.357 was granted to the predecessors of Ganesh Shamji Joshi in 1830 who was the vahivatdar to an extent 13 acres 1 gunta. Th at his predecessor was the owner in possession of land bearing R.S.No.358 to the extent of 1 acre 18 guntas. The RTC entries from the year 1948 with respect to land bearing Sy.No.357 stands in the name of Basappa, as cultivator, for both the lands in question. By mutation entry No.3115 dated : 16 : 28.10.1963, the name of Basappa stood deleted and the name of Ganesh Shamji Joshi was entered. Therefore, ever since then, the name of Ganesh Shamji Joshi continues in the record of rights for both the lands. The mode of cultivation therein is shown as 'one'. Thereafter as narrated hereinabove, the Tribunal, by the present impugned order, granted 10 acres in Sy.No.357 and 1 acre 18 guntas in Sy.No.358 to Babu Basappa. It held that there was no cultivation in 3 acres and hence occupancy rights could not be granted.
8. The primary contention of Sri Ravi Balikai, learned counsel, is that the RTC extracts show his name ever since the mutation entry No.3115 dated 28.10.1963. The same is undisputed. Therefore the question of the Land Tribunal considering any other material to grant occupancy rights is erroneous. The Land Tribunal : 17 : misread the said mutation entry and has erroneously granted occupancy rights. That the material to show that he is a tenant in cultivation of the land in question is this very mutation entry. When the records show that the same has been effected on the plea of Ganesh Shamji Joshi as well as Basappa, to that extent, the name of Basappa is a bogus entry. Therefore the name of Basappa was deleted and the name of Ganesh Shamji Joshi was entered. I have examined the records. It is what is contended by the counsel. However what is of relevancy is the earlier mutation entry No.1502 dated 17.6.1948, in terms whereof, Basappa was declared as a protected tenant under Section 37 of the Bombay Tenancy and Agricultural Lands Act 1948. That in terms of Section 4A he is a protected tenant. That he is a deemed tenant in terms of Section 4 of the Act, which reads as follows:
: 18 :
4. A person lawf ully cultivating any land belonging to ano ther person shall be deemed to be a tenan t if such land is not cultivated personally by the owner and if such person is not--
(a) a member of the owner's f amily, or
(b) a servant on wages payable in cash or kind but no t in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owners, f amily, or
(c) a mor tgagee in possession.
9. In terms of Section 4A of the Act such a deemed tenant is to be considered as a protected tenant, under Sections 3, 3A and 4 of the Bombay Tenancy Act, 1939. Therefore it is pleaded that in terms of the mutation entry No.1502 dated 17.6.1948, he is a tenant in terms of Section 4 and a protected tenant in terms of Section 4A of the Act. Consequently it is pleaded that under the Act, the possession can be disturbed only in terms of Section 29. In terms of sub section (2) of Section 29 of the Act, no landlord could obtain possession of land or a dwelling house held by a : 19 : tenant, except under an order of Mamlatdar, etc.,. Therefore there is no material that any proceedings have been initiated under Section 29(2) of the Act, i.e., the only mode prescribed in law for taking possession. The same has not been done. In pursuance whereof he relies on a judgment reported in AIR 1975 Supreme Cour t 915 (Ramchandr a Keshav Adke (Dead) by Lrs., vs. Govind Joti Chavare and others).
10. Section 29(2) of the Bombay Tenancy and Agricultural Lands Asct, 1948, reads as follows:
29. Procedure of taking possession.
(1) xxxx xxxx xxxx (2) S ave as otherwise provided in sub-section (3A), no landlord shall obtain possession of any land or d welling house held by a tenan t except under an order of the Mamlatd ar. For obtaining such order he shall make an application in the prescr ibed f orm and within a per iod of two years f rom the d ate on which the right to obtain possession of the land or d welling house, as the case may be, is deemed to have accrued to him.: 20 :
11. On examining the records, it does not show that any proceedings have been initiated or any action has been taken in terms of sub-section (2) of Section 29 of the Act. Therefore even though the mutation entry No.3115 would certify the deletion of the name of Basappa and the inclusion of the name of Ganesh, the same would have to be only in terms of law as narrated in sub-section (2) of Section 29 of 1948 Act. Therefore the protection as meted out to the tenant in terms of Section 4 and 4A of the Act having continued, giving effect to mutation entry No.3115 in order to uphold the plea of Ganesh Shamji Joshi, is therefore unsustainable. The same is opposed to law. In fact, it is the very reasoning assigned by the Land Tribunal while coming to the conclusion that mutation entry No.3115 cannot be read to mean that Ganesh Shamji Joshi was put in possession. The only manner in which Basappa could have been evicted is in terms of sub-section (2) of : 21 : Section 29 of the Act. Therefore the reasoning assigned by the Land Tribunal is just and appropriate. It is in terms of law and therefore I do not find any error that calls for any interference.
12. The Tribunal has also relied on various other material in support of the case of the tenants. One of the documents is a receipt for a period of ten years from 1963-64 onwards. It shows that it is an advance receipt paid by Basappa to the father of Ganesh Shamji Joshi. However the same was disbelieved by the Tribunal. However the other rent receipts produced by him, were accepted by the Tribunal. It was therefore of the view that notwithstanding the mutation entry No.3115, the rent receipts produced, would substantiate the claim, that Basappa was in occupation and cultivation of the land in question, as a tenant.
: 22 :
13. It is a further contention of the landlord that as a consequence to mutation entry No.3115, the record of rights have been changed. His name has been entered, ever since 1963 onwards. That there is a presumption so far as this document is concerned. Unless the presumption is rebutted, the record of rights would have to be read to mean that the landlord was in cultivation of the land in question. However the manner in which the landlord is said to have entered into possession cannot be substantiated by a mere mutation entry. Section 29(2) postulates the manner in which the possession has to be taken. It is only in the manner as prescribed in sub-section (2) of Section 29, that possession could change. No other procedure is envisaged under the Act by which the landlord could take possession. Therefore as held hereinabove, on the failure of the landlord to take possession in a manner : 23 : known to law, reliance placed on the mutation entry no.3115 is therefore misplaced.
14. The Hon'ble Supreme court in a judgment reported in AIR 1975 Supreme Cour t 915 (Ramchandr a Keshav Adke (Dead) by Lrs., vs. Govind Joti Chavare and others) were concerned with the very Act in question viz., the Bombay Tenancy and Agricultural Lands Act, 1948. Therein it was held at para 12 as under:
12. It will be seen f rom a combined reading of these provisions that a surrender of tenancy by a tenan t in order to be valid and eff ective must f ulf il these requirements: (1) It must be in wr iting. (2) It must be verif ied bef ore the Mamlatd ar. (3) While making such ver if ication the Mamlatd ar must satisf y himself in regard to two things, namely,
(a) that the tenant understands the nature and consequences of the surrender, and (b) that it is voluntar y.
(4) The Mamlatd ar must endorse his f ind ings as to such satisf action upon the document of surrender.
15. The said judgment was followed by one of the judgments of this Court reported in : 24 : ILR 2000 Karnatak a 2872 (Babu Y allappa San ad i vs. Land Tribunal and others) to the said effect. Under these circumstances the law having been declared by the Supreme Court, the same requires to be complied.
16. It is however relevant to notice that mutation entry No.3115 appears to have been entered on the say of the tenant and the landlord. No proceedings were pending prior to that date. It is therefore to be presumed that the tenant appeared before the concerned authority and submitted that his name has been entered in a bogus manner. It will be difficult to accept such a situation. There was no pending proceeding that warranted any statement by the tenant. There was no reason for the tenant to appear before the authority and to submit that it is a bogus entry. Even assuming it is a bogus entry, the normal conduct would be to continue such an entry until : 25 : and unless it is questioned. To suomoto appear before the authority and to voluntarily submit that there is a bogus entry and consequently his name must be deleted, cannot be accepted. It is a highly abnormal act. Such a conduct of the tenant cannot be accepted as being true. Notwithstanding the various contentions urged so far as the merits are concerned, it would appear that such an action of the tenant is not a natural behavior and would certainly throw a doubt on he pleading that the entry is bogus. Consequently in view of holding that the landlord could not have taken possession of the land in question in the manner known to law, as enunciated hereinabove, the reasonings of the Tribunal are just and appropriate.
17. It is also relevant to notice that mutation entry No.3115 is not on the basis of a surrender by the tenants. It is only based on the : 26 : fact that the tenant submits that his name has been entered in a bogus manner. Therefore in law, it cannot be said that there was an attempt by the tenant to surrender the lands. Therefore the question of compliance of Section 29(2) of the Act becomes all the more imminent.
18. The Land Tribunal recorded a finding that there is no cultivation so far as 3 acres 1 gunta of land in Sy.No.357 is concerned. It was of the view that there was no material and evidence worthwhile, that could show that the land to this extent was being cultivated. The material would show that grass grew by itself, without any cultivation or without any tilling of the land. The reasoning assigned by the Tribunal on this ground is just and appropriate. It is based on the evidence and material on record. There is no reason to take a different view.
: 27 :
19. It is relevant to notice that the Tribunal has exhaustively dealt with each and every contention advanced by the parties. The contentions have all been considered in depth by the Tribunal. There is no grievance by any of the counsels herein that no adequate reasons have been assigned or that no adequate opportunity has been given. Every iota of evidence has been substantially considered. It is a well considered, just, fair and reasonable order.
20. Therefore for the aforesaid reasons, I do not find any ground to interfere in the well considered order of the Tribunal. Consequently, the writ petitions being devoid of merit are dismissed.
Rule discharged.
SD/-
JUDGE Mrk/-