Karnataka High Court
Revanappa vs Muniyappa (Deceased) By L.R. And Others on 23 March, 1998
Equivalent citations: ILR1998KAR3021, 1998(6)KARLJ47, 1998 A I H C 4403, (1998) 6 KANT LJ 47
Author: S.R. Venkatesha Murthy
Bench: S.R. Venkatesha Murthy
ORDER
1. The respondent herein instituted O.S. No. 50 of 1960 on the file of the Munsiff, Badami for declaration of title to the land measuring 5 acres and 28 guntas and in Survey No. 102/2 of Nandikeshwara Village, Badami Taluk against one, Kallappa, alleging that said Kallappa was a tresspasser and that he had no right to remain in possession of the property. The Trial Court dismissed the suit but the Civil Judge, Bagalkot, by his judgment and decree, in RA No. 56 of 1986, dated 8th August, 1974 allowed the appeal and granted a decree for possession of 5 acres of land in the eastern portion of the said survey number. Meanwhile, the petitioner herein filed Form No. 7 claiming occupancy rights to the land in question on the ground that he has been in lawful possession of the land from 1964-65 having been let into possession by Balappa Badiger, the defendant in the suit.
2. The Land Tribunal recorded evidence, and conferred occupancy rights in favour of the petitioner herein holding on the ground that the petitioner was in possession of the land as a tenant of said Kallappa. The respondent herein challenged the grant in favour of the petitioner before this Court and ultimately, the Land Reforms Appellate Authority which heard the claim, recorded the evidence of the parties and came to the conclusion that the claim of the petitioner that he was lawfully cultivating the land as a tenant of the property was unsustainable and rejected the claim of the petitioner for occupancy rights.
3. In this revision, it is sought to be contended on behalf of the petitioner that the petitioner was admittedly inducted into the possession of the property by the defendant in the suit. The petitioner has been in possession of the land for. over 30 years and therefore he must be assumed to be a tenant entitled to conferment of occupancy rights. The claim of the petitioner that he has been in possession of the land since over 30 years is untenable having regard to Form No. 7 which shows that during the year 1964-65, he claims to have been put into possession of the property in question by the legal representatives of the defendant in O.S. 50 of 1960. So, it is clear that the petitioner claims to have come into possession of the property by virtue of the defendant placing him in possession of the same during the pendency of the suit filed by the respondent against Kallappa.
4. On behalf of the petitioner, it was contended that under Section 44 of the Karnataka Land Reforms Act, the petitioner being in possession of the land as on 1-3-1974, the land vests in the Government and notwithstanding a decree or order for eviction that may be made so far as it relates to the property in question, the petitioner becomes entitled to be regarded as a person in lawful possession of the land as a "deemed tenant". This claim would have to be viewed in the background of the case of the respondent. It is clear Kallappa, according to the allegations made in the suit against him, was characterised as a trespasser having come by possession of the land during 1960-61 and that he was liable to surrender possession of the entire land to the respondent herein. Now it is beyond controversy that the petitioner herein was inducted into the possession of the property by Kallappa, the defendant in the suit. It is also beyond controversy that the respondent secured decree for possession against Kallappa and has executed the decree and secured possession of the property. The emphasis of the petitioner has been that Kallappa, the defendant in the suit inducted the petitioner into possession of the property and therefore, the subsequent decree that came to be made against Kallappa for possession of the property would not affect the case of the petitioner. A person in order to claim tenancy of the property must have been rightly inducted into possession of the property by a person who has a right to the property. The defendant Kallappa's right to the land in question is now conclusively held against him by the Civil Court. Kallappa is concluded by the decree for possession. It is clear that the defendant did not have any semblance of title to hold on to the property and that he had to yield up possession of the land to holder of decree. If a person, who is found to be a trespasser were to induct another into possession of the property such a person can never plead lawfulness of possession. Such a person, like the petitioner, inducted into possession of the property, cannot claim any right superior to that of the person who inducted him into possession of the property. Under the Karnataka Land Reforms Act, the tenant is defined as thus:
2(34) "tenant" means an agriculturist who cultivates personally the land he holds on lease from a landlord and includes.-
(i) a person who is deemed to be a tenant under Section 4;
(ii) a person who was protected from eviction from any land by the Karnataka Tenants (Temporary Protection from Eviction) Act, 1961;
(ii-a) a person who cultivates-personally any land on lease under a lease created contrary to the provisions of Section 5 and before the date of commencement of the Amendment Act.
(iii) a person who is a permanent tenant; and
(iv) a person who is a protected tenant.
It is clear from the above definition that a lease must have been created by a landlord to lend validity to the possession of the person claiming tenancy. A landlord is also defined thus:
2(20) "landlord" means a person who has leased land to a tenant and includes a person entitled to receive rent from a tenant. The owner is also defined thus:
2(21) "landowner" means an owner of land and includes a trustee or mortgagee with possession thereof;
Admittedly the respondent is the owner of the land whose title is declared by the Civil Court. The question is, whether the defendant, Kallappa could claim for himself status of a landlord. It is clear that a person in order to claim the status of landlord, must have a semblance of right in the property to place another man in lawful possession of the property. A trespasser like Kallappa were to lease property to another person, it hardly requires any logic to say that such a lease is totally invalid and confers no right on a person like the petitioner herein, to defeat the claim of the owner of the land. In the instant case, there has been unequivocal declaration of title of the respondent to the property against the defendants and all persons claim through him should respect the delivery of possession of the property.
5. An attempt was made to suggest that, notwithstanding the decree that the respondent may have obtained, Section 44 becomes operative. A reading of Section 44 would show that only such decrees or orders for eviction of a tenant would become inoperative and not other decree that may be passed in a suit like the one instituted by the respondent herein. The decree that the respondent obtained against the lessor of the petitioner herein would be clearly valid and Section 44 would not in any manner affect such a decree. The transaction through which the petitioner herein claims tenancy right is hit by Section 52 of the Transfer of Property Act and there is no way by which the petitioner can salvage his claim in respect of 5 acres of land belonging to the respondent herein.
6. A feeble attempt was made to suggest that Section 3(2) of the Karnataka Land Reforms Act provides that the Land Reforms Act should prevail as against the principles of the Transfer of Property Act so far as it is inconsistent with the provisions of the Land Reforms Act. In this case, I see no conflict between any provision of the Land Reforms Act and Section 52 of the Transfer of Property Act. Even otherwise, all that sub-section (2) of Section 3 delas with the overriding effect of the provisions of the Land Reforms Act so far as they relate to Chapter V of the Transfer of Property Act only. It needs hardly be said that Section 52 of the Transfer of Property Act does not come within Chapter V of the Transfer of Property Act.
7. The learned Counsel for the respondent relied on 5(6 Gulam Sao v Syed Bashiruddin and Others, to say that the word "landlord" is used in a wide sense as to include even a person who is not a proprietor or the like, but is himself a tenant and under him there is another person who is holding same land as a tenant. It is further observed that a tenancy could be created by acts indicating the establishment of relationship of landlord and tenant which could be either expressed or implied or gathered from conduct, or circumstances of the parties. Then the Court went on to hold that where the opposite party was in possession of the house with the implied consent of the petitioners, the petitioners would be the landlords or opposite party within the meaning of Section 3(4) of the Bihar Tenancy Act read with Section 2(1) of the Act 4 of 1945. The above observation only emphasises the fact that the tenant must have been inducted into property by a person who had some title to property and not a person like the petitioner's lessor who was facing the litigation, being branded as a trespasser. It can hardly be said that the petitioner's possession of the land was with the implied consent of the respondent nor is such a case pleaded or attempted to be proved.
8. So, the question of petitioner's possession of the property during the pendency of the suit for possession instituted by the respondent cannot avail to support a claim of deemed tenancy as the claim is hit by Section 52 of the Transfer of Property Act. If Kallappa had no semblance of title to the property he could hardly confer a better title to the petitioner in this case. Reliance was also sought to be placed on the decision reported in Babu Poojary v Assistant Commissioner, Mangalore and Others, in support of the claim of the petitioner. I hardly see any relevance of this decision is concerned as consistent gap between Section 52 of the Transfer of Property Act and Section 44 of the Karnataka Land Reforms Act. It was also sought to be contended on behalf of the petitioner placing reliance on Seena Seregara v Land Tribunal, that even a void lease could still confer on the tenant a status of deemed tenant under the Act. In Seena Seregara's case, supra, the lease created was by the owner of the land in contravention of the Land Grant Rules. In such a situation the lease was held valid as obviously the owner of the land was in lawful possession of the land till evicted in accordance with law consequent on cancellation of the grant for contravention of the terms of grant. Kallappa under whom the petitioner claims tenancy had absolutely no power to create the lease being a rank trespasser. Therefore, the decision relied upon would not apply to the circumstances of the case.
9. The learned Counsel for the petitioner sought to contend that the presumption under Section 133 of the Karnataka Land Revenue Act would get attracted to the facts of the case. Even this contention in my opinion cannot be accepted for there was no right vested in a trespasser to create a lawful lease and the entries in the record of rights stood destroyed by the overwhelming evidence of illegality of the transaction relied upon by the petitioner. If the evidence on record rebutted the presumption under Section 133 of the Karnataka Land Revenue Act, it hardly matter who amongst the parties had produced the evidence.
10. In the circumstances, the revision has no merit and is dismissed.