Karnataka High Court
Guruvappa And Anr. vs Manjappu Hengsu And Ors. on 18 September, 1984
Equivalent citations: ILR1985KAR386, 1985(1)KARLJ51
JUDGMENT Nesargi, J.
1. This appeal is directed against the order dated 13-9-1977, passed in W. P. No. 8050 of 1977, which had been preferred by the appellants and came to be dismissed at the stage of preliminary hearing. In the said Writ Petition, the order dated 29-6-1977, passed by the Land Tribunal, Mangalore, in RT 832-75-76, was sought to be quashed.
2. As the Writ Petition has been dismissed at the stage of preliminary hearing, we do not consider it absolutely necessary to go into the actual reasons put forth in the impugned order. We deem it just and appropriate to go to the considered order of the Land Tribunal itself in exercise of the appellate powers The order of the Tribunal which is at Ext. 'A', discloses that Respondent-1 Manjappu Hengsu filed Form No. 7, informing the Land Tribunal that the lands in question are the leasehold Lands of herself, the Appellants, Respondents 2, 6, 7. She requested that as all of them are tenants of the lands in question, all of them be registered as occupants.
3. Memorandum of Writ Petition shows the relationship amongst these persons in paragraph 2. Paragraph 4 of the memorandum of Writ Petition makes out that appellant-1-Petitioner-1 claimed before the Land Tribunal that he be registered as occupant of two lands in Kannur village and 7 Lands of Alpe village and that appellant-2 claimed that he should be registered as an occupant in respect of the registered as occupants of these lands.
4. It is to be noticed, that in Form No. 7 submitted by appellant-1, he had not claimed occupancy rights over lands S. Nos. 51-5 measuring 1 acre 43 cents, 51-7 measuring 27 cents and 52-2 measuring 1 acre 55 cents of Alke village ; but by the impugned order of the Tribunal, he has been granted occupancy rights along with others over these lands. In other words, he got certain advantage in addition to what he had claimed in Form No. 7.
5. It is clear on the face of the order of the Tribunal that the Tribunal has concluded that all these persons constituted joint family and the tenancy is joint family tenancy, in view of the fact that Mundappa Poojary whose widow is Respondent-1 and whose sons are the appellants and Respondents-2 and whose daughters are Respondents 6 and 7 and the remaining are grand daughters of the original tenants undisputedly. The fact that Mundappa Poojary, father of the appellants or the tenant held leasehold right under the landlord and the whole family enjoyed that right is not seriously in dispute before us.
6. Sri A. Keshav Bhat, Learned Counsel appearing on behalf of the appellants contended that according to the appellants they were the only persons who were in actual possession and cultivating the lands in question as put forth by them in their Form No. 7 and therefore the Tribunal ought to have registered them only as occupants in respect of the area of lands cultivated by them, to the exclusion of any other respondent.
7. Nowhere have the appellants stated anything about there being or there not being joint family consisting of themselves, respondent-1, respondent-2 and others. They have neither asserted about its existence nor denied. The hard fact remains that respondent-1 had claimed occupancy rights before the Tribunal unnaturally as the acquisition of lease-hold right by Mundappa Poojary, the father of appellants and respondent-2, respondent-1, his widow, his first wife Venkamma whose son is appellant-2 and whose daughter is respondent-3 had already expired.
8. Even assuming for the sake of arguments that the appellants are engaging themselves in cultivation of the areas of lands as put forth by them, it is to be seen whether the Tribunal had the jurisdiction and power to come to the conclusion that the tenancy was joint family tenancy. Reading of Section 112(b) of the Act, shows that the Tribunal has the necessary jurisdiction and power to decide who is a tenant. A joint family can also be a tenant which is not disputed by Sri A. Keshav Bhatt. Joint family is defined in the Karnataka Land Reforms Act, 1961 (hereinafter referred to as the Act). Section 2(17) reads as follows :
"(17) "joint family" means in the case of persons governed by Hindu Law, an undivided Hindu family and in the case of other persons a group or unit, the members of which are by custom joint in caste or residence;"
'Tenant' is defined in Section 2(34) of the Act as follows :
"(34) "tenant means an agriculturist who cultivates personally the land be holds on lease from a land-lord and includes--
Agriculturist is defined in Section 2(3) of the Act, which reads as follows :
"(3). "agriculturist" means a person who cultivates land personally ."
9. The word 'person' is not defined in the act. Therefore, the definition given in the General Clauses Act, which reads as follows will apply :
''(42) "person" shall include any company or association or body of individuals, whether incorporated or not;"
10.In view of our conclusion that the word 'person' includes a joint family and in view of Explanation II to Section 2, it is clear that the Tribunal has the power to decide whether a joint family is or is not a tenant under Section 112(b) of the Act. We agree with the view taken by this Court in Mudakappa -v.- Rudrappa, 1978 (1) K.L.J. 459.
11. Now the question is how to understand the words 'to cultivate personally' as found in Section 2(34) of the Act. These words are defined in Explanation II to Section 2, which reads as follows:
"In the case of a joint family, the land shall be deemed to be cultivated personally, if it is cultivated by any member of such family."
12. In view of the foregoing, even if it is, as already stat-ed, assumed that the claim put forth by the appellants that they have been personally cultivating the lands namely, the respective areas, Explanation II to Section 2 would be attracted. Therefore, on facts and the bare reading of the different provisions of the Act, we are unable to see any error having been committed by the Tribunal. We may make it clear that in case there is any other person who is a member of this joint family namely, one who is not included in the names narrated by the Tribunal in the impugned order, the rights of such person would not be affected as they can be agitated by him and got settled in a Civil Court because it has been laid down by this Court in a catena of decisions that such a right is a property and a member of a joint family can claim such a share in such property by instituting a suit.
13. Therefore, we see no substance in this appeal and dismiss it. No order as to costs.