Karnataka High Court
Sri.Sateesh Ganapathi Kadam vs The Land Tribunal Chikodi By Its ... on 17 January, 2013
Author: Subhash B.Adi
Bench: Subhash B. Adi
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 17TH DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE SUBHASH B. ADI
WRIT PETITION No.40890/2003(LR)
BETWEEN:
1. Sri. Sateesh Ganapathi Kadam
Aged 50 years
Occ: Agriculture
Resident of Chinagaonkar Galli
At & post: Nipani
Taluka Chikodi
District Belgaum
Pin: 591 237
2. Bhaskar Sakharam Kadam
Aged 45 years
Since deceased by LRs.
2(a) Smt. Sashikala, W/o late Bhaskar Kadam
Aged 65 years, Occ: House wife
2(b) Sri. Anil, S/o Late Bhaskar Kadam
Aged 50 years, Occ: Agriculture
2(c) Sri. Raju, S/o Late Bhaskar Kadam
Aged 45 years, Occ: Agriculture
2(d) Sri. Arun, S/o Late Bhaskar Kadam
Aged 40 years, Occ: Agriculture
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All are R/o ChinagaonkarGalli
At & Post Nippani, Tq: Chikodi
Dist.: Belgaum - 591 237. (amended vide Court
Order dated 11.10.2012)
3. Smt. Sushila Satalingappa
Patil, aged 60 years
Household work, resident
At Post Dudhani
Akkalkot, Dist:Solapur
Maharashtra State.
4. Smt. Pramila Ramagouda Patil
Aged 57 years
Occ: Household Work
At & Post: Naganur
Taluka Chikodi
District Belgaum
Pin - 591 202.
5. Smt. Vatsala Bapusaheb Magadum
Aged 53 years
Occ: Household work and
Agriculture, C/o Nitin Bapusaheb
Magadum, resident at & Post:
Sulagaon, Taluka Chikodi
District Belgaum
PIN - 591 201. ...PETITIONERS
(By Sri.G.Balakrishna Shastry, ADV. For P-1)
AND:
1. The Land Tribunal
Chikodi by its Chairman
Taluka Chikodi
District Belgaum
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2. State of Karnataka
Represented by the Secretary
To Revenue Department
M.S.Building
Dr. Ambedkar Road
Bangalore - 560 001.
3. Ghousekhan Mammalalsaheb Inamdar
Major
4. Gafarkhan Nasarullakhan Inamdar
Major
5. Safarkhan Nasarullakhan Inamdar
Major
6. Khadarkhan Mohammedkhan Inamdar
Major
7. Khadarkhan Hasankhan Inamdar
Major
R-3 to R-7 are residing at
Yamagarni Village, Chikkodi Taluk
Belgaum District.
8. Jaibunnisa Saheblal Inamdar
Major
Since deceased by LRs.
8.(a) Noorahmed, S/o Saheblal Inamdar
Age 52 years, Occ: Business
8.(b) Megharaj Saheb, S/o Saheblal Inamdar
Age 50 years, Occ: Business
8.(c) Mohammed Pasha, S/o Saheblal Inamdar
Age 48 years, Occ: Business
8(d) Zakeerahmed, S/o Saheblal Inamdar
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Age 46 years, Occ: Business
8(e) Nisarahmed,
S/o Saheblal Inamdar
Age 44 years, Occ: Business
8(f) Haram Rashid, S/o Saheblal Inamdar
Age 42 years, Occ: Business
8(g) Feeroz, S/o Saheblal Inamdar
Age 40 years, Occ: Business
All are resident of Yamagarni Village
Taluka Chikkodi, District: Belgaum
9. Alekhan Abasaheb Inamdar
Major
10. Riyazkhan Hussainkhan Inamdar
Major
11. Hayathkhan Hussainkhan Inamdar
Major
12. Mahirajkhan Hussainkhan Inamdar
Major
13. M.G. Hatrote
Major, R/o Srinagar
Plot No. 206, Belgaum deleted
Vide Court order dated
14. Sri. C.D.Hatrote 8/10/2003
Major, R/o Puntra
Agana B Plot NO.7
Pingal Vasthi
Mandapa Road
House No. 36
Belgaum.
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15. Sri.Sadanand amended
S/o Mahalingappa Pamadinni vide Court
Age: 60 years, Occ: Advocate order dt.
R/o N.M.Road, Chikodi 03.01.2013
District:Belgaum
... RESPONDENTS
(BY Sri.Y.V.Raviraj, AGA for R-1 & R-2;
Sri.Vighneshwar S.Shastri for C/R3 & R9;
Sri.Jayakumar S.Patil, Sr.Counsel for Sri. F.V.Patil for
R8(a) to (g), R-9;
R-5 to R-7 are served through paper publication;
R-4, R-10, R-11, R-12 are served;
R-8 service is held sufficient;
R-13 & R-14 are deleted)
This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India, praying to quash vide Annexure-A
dt.28.4.2003 by the land tribunal, Chikodi. Direct the Land
Tribunal, Chikodi to grant occupancy rights in favour of the
petitioners as prayed for in the form No.7 & etc.,
This petition coming on for preliminary orders this
day, the court made the following:
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ORDER
Petitioners have questioned the order passed by the first respondent - Land Tribunal dated 28.04.2003 produced at Annexure `A`.
2. Smt. Umadaabi, wife of Daulatkhan was the Inamdar. She had mortgaged her lands bearing R.S.Nos.78, 79 and 80 measuring 31 acres 35 guntas, 33 acres 37 guntas and 35 acres 19 guntas in favour of one Rachappa Gulappa Hatrote under the registered mortgage deed dated 16.08.1890. Petitioners claim that they were cultivating the said lands as tenants under the Inamdar since 1945-46.
3. The case of the petitioners was that, though the lands were mortagaged, the lands were part of Kagar Jahagir of the then Kolhapur State, and the Kolhapur State had enacted a law called Debt Conciliation Act, 1943. The predecessors-in-title of respondents 3 to 12 i.e., the Inamdar had filed an application on 22.06.1943 under the provisions of the said Act for the discharge of the mortgage debt in an :7: Application No.PF.17/1353(Fasli) before the Debt Conciliation Board. The Debt Conciliation Board, by its order dated 26.01.1945 has held that, the mortgage stood extinguished and the applicants Inamdar were entitled for possession of the land free from encumbrance.
4. Accordingly, the predecessors-in-title of respondents 3 to 12 took possession of the mortgaged properties on 03.04.1946 and same was leased in favour of one Ganapathi Mahadev Kadam, the predecessor-in-title of the petitioners. Since then, the lands were under the cultivation by Ganapati Mahadev Kadam and thereafter, by the petitioners. However, the mortgagee Gurappa Rachappa Hatrote, initiated proceedings under Section 145 of the Code of Criminal Procedure in Misc. Case No.7/1946. In the said proceedings, the Circle Inspector was appointed as receiver, the said receiver auctioned the cultivation right, and the predecessors of the petitioners held the lease hold rights and continued to cultivate the lands even after the appointment of the receiver. In the meanwhile, the mortagee challenged the order of the Debt Conciliation Board in O.S. :8: No.12/1948, which was renumbered as O.S. No.153/1950 inter alia seeking for declaration and injunction. Since Ganapathi Mahadev Kadam was already in possession and enjoyment of the said lands as a tenant, his possession continued undisturbed even after the receiver was appointed in the said suit. His name was mutated in the record of rights from the year 1950-51 to 1996-97. However the suit in O.S. No.153/1950 (old O.S. No.12/1948) was decreed declaring that the order passed by the Debt Conciliation Board was null and void, and it was also held that the mortgagee is entitled for possession. But, in the said suit tenant was not impleaded as a party and his rights were never affected by the said proceedings.
5. Thereafter, the Inamdar filed a suit in O.S.No.2/1970 before the Civil Judge, Belgaum, against Hatrote, the mortgagee for redemption of the mortgage. The said suit was transferred to the Court of Civil Judge, Chikodi, and was renumbered as 71/1972. In the said suit, the inamdar in the pleading itself has admitted the tenancy :9: of Ganapati Mahadev Kadam from 1946. Even in O.S.No.2/1970 receiver was appointed, however, the inamdar in his application for continuing the appointment of receiver has further admitted that the lands are cultivated by the tenants and the leasehold rights be continued in their favour.
6. The Inamdar executed a sale deed dated 02.01.1970, conveying one fourth share in the properties in favour of Ganapathi Mahadev Kadam and even in the said sale deed also tenancy is admitted. The further case of the petitioners was that, these admission by the Inamdar prove the tenancy of the deceased Ganapathi Mahadev Kadam, predecessor-in-title of the petitioners from 1946. Hence, on coming into force of the Karnataka Land Reforms Act (hereinafter referred to as `the Act`), as on 01.03.1974, the deceased Ganapathi Mahadev Kadam filed an application for grant of occupancy rights, since the lands were under joint cultivation, these petitioners also filed an application for grant of occupancy rights. The Land Tribunal, Chikodi, by : 10 : its earlier order dated 06.12.1981, granted occupancy rights in favour of the petitioners, however the said order was called in question by the Inamdars in W.P. No.7471/1982. This Court allowed the said writ petition by quashing the order of the Land Tribunal dated 06.12.1981 and remanded the matter to the Land Tribunal to dispose of the applications filed by the petitioners in consonance with provisions of Rule 17 of the Karnataka Land Reforms Rules.
7. After the remand, before the Land Tribunal on behalf of the Inamdar, written arguments along with 39 documents came to be filed. Hence, the Petitioners filed an application dated 15.06.2012 seeking permission to lead oral evidence having regard to filing of 39 documents by the Inamdar. However, the Land Tribunal, adjourned the matter to 29.07.2000 and from the said date to 12.08.2002 and from 12.08.2002 to 24.08.2002 and from 24.08.2002 to 04.09.2002. On 04.09.2002, the Land Tribunal reserved the matter for orders, and without giving an opportunity, it rejected the application filed by the petitioners for grant of : 11 : occupancy rights, as against the same, these petitioners have failed this writ petition.
8. Sri Balakrishna Shastry, learned counsel appearing for the petitioners submitted that, though the lands in question were mortgaged to one Rachappa Gulappa Hatrote in 1890. However, in the proceedings, under the provisions of the Debt Conciliation Act, 1943. The Debt Conciliation Board, in exercise of its power under the said Act, had passed an order on 26.01.1945 extinguishing the mortgage and holding that, the mortgagor is entitled to possession of the lands, accordingly mortgagor took possession of the lands in question and leased the same in favour of Ganapathi Mahadev Kadam on 03.04.1946. It is thereafter, in proceedings under Section 145 of the Code of Criminal Procedure, the Circle Inspector was appointed as a Receiver and thereafter, in O.S. No.12/1948 renumbered as O.S. No.153/1950, the Civil Court appointed a receiver and the said receiver was continued till the disposal of the suit. But, even when the receiver was appointed, the tenant held : 12 : the leasehold rights and continued in possession. Tenancy was created even before the receiver was appointed and hence, the appointment of receiver, did not affect the tenancy rights of the petitioners, as on 03.04.1946, the debt was extinguished and the owner took possession of the lands and he leased the lands in favour of Ganapathi Mahadev Kadam, who became the lessee under the Inamdar and not by virtue of leasehold rights created by the receiver in Court proceedings. The Land Tribunal has wrongly relied on the findings in O.S. No.153/1950 to hold that, tenancy of Ganapathi Mahadev Kadam was created by the receiver appointed by the Court, and further held that, the tenancy created by the receiver will not be amenable for grant of occupancy rights and application filed by such person under Section 48A of the Act, before the Land Tribunal is not maintainable. He submitted that this finding is perverse.
9. He further submitted that, the Tribunal has not looked into the records and did not consider the previous possession of the lands in question by the owner in 1945. : 13 : The fact that the lands were tenanted, even before the appointment of receiver in any proceedings is admitted by the Inamdar in the suit for redemption in O.S. No.2/1970, wherein he had pleaded and admitted that, Ganapathi Mahadev Kadam was a tenant and he was in possession as a tenant in 1945 - 46. This aspect of the matter is also reaffirmed in the affidavit filed along with the application in the very said suit, wherein the Inamdar himself had admitted for continuing the tenancy through the receiver in favour of Ganapathi Mahadev Kadam. Apart from this, Inamdar has also admitted under the sale deed executed on 02.01.1970, wherein it is stated that Ganapathi Mahadev Kadam was a tenant of the land. As such, the Tribunal has ignored the documentary evidence and admission of tenancy. The Tribunal has also ignored the presumptive value of the entries in the revenue records from the year 1950-51 to 1996-97 including for the relevant year.
10. Nextly, he contended that, before the Tribunal, owners filed written arguments along with 39 documents on : 14 : 18.05.2002. Thereafter, the petitioners had filed an application on 15.06.2002 inter alia seeking permission for leading oral evidence. However, the Tribunal did not permit the petitioners to lead oral evidence, in turn, posted the matter for arguments on 29.07.2000. Though the matter was adjourned on 12.08.2002 to 24.08.2002, as there was no quorum on the said date, again the matter was adjourned to 04.09.2002, and On 04.09.2002, the matter was further adjourned. As the petitioners were not offered an opportunity to lead oral evidence, they were constrained to file the written arguments on 09.09.2002. However, the land Tribunal without giving opportunity and without considering the written argument of the petitioners and also the documents, has passed the impugned order.
11. Sri Balakrishna Shastry also relied on the judgement of the Apex Court reported in AIR 2003 SC 578 in the matter of B.L. SREEDHAR AND OTHERS Vs. K.M. MUNIREDDY (DEAD) AND OTHERS to submit that, the owners are estopped from contending contrary to their : 15 : pleadings in their suit in O.S. No.2/1970. He also relied on the judgment of the Apex Court reported in AIR 1994 SC 1302 in the matter of HANUMAN Vs. STATE OF HARYANA to submit that, the burden of rebutting the admission is on the party, who makes the admission, however the Inamdars have not produced any rebuttable evidence. Learned counsel further relied on another judgment of this Court reported in 1978(1) Kar.L.J 382 in the matter of THAMMANNA PARISA GUNDALE Vs. STATE OF KARNATAKA AND OTHERS and submitted that, there is no bar under the provisions of Section 27 of the Bombay Tenancy and Agricultural Lands Act, 1948 to recognize the sub-tenant. He also submitted that wrong finding has been recorded by the Tribunal that by virtue of the decree in mortgage suit, the owner has taken possession of the property, which is factually incorrect and submitted that the impugned order of the Tribunal is not sustainable in law.
12. On behalf of respondent Nos.3 to 12, Sri Jayakumar S. Patil, learned senior counsel submitted that : 16 : the application filed by the petitioners under Section 48A of the Act for grant of occupancy rights is not maintainable as the tenancy is traceable only through the receiver and Section 108 of the Act bars the Tribunal from granting occupancy rights in respect of tenancy created by the receiver. He further submitted that, it is not in dispute that, the Inamdar/owners of the lands mortgaged the lands in favour of Rachappa Gulappa Hatrote under a registered mortgage deed dated 16.08.1890. However the owners (mortgagers) had moved an application before the Debt Conciliation Board for discharge of the debt. The said Debt Conciliation Board passed an order extinguishing the debt, however it had not ordered for delivery of possession. The mortgagee had challenged the order of the said Debt Conciliation Board, in O.S.No.12/1948, which was later numbered as O.S.No.153/1950. In the said suit, the mortgagee had sought for the decree for declaration declaring that the order of the Debt Conciliation Board is void and to declare that the mortgage rights of the mortgagee had never been extinguished and for declaration that the : 17 : plaintiffs are entitled to get the income and possession of the suit lands with costs.
13. He further submitted that the tenancy of Ganapati Mahadev Kadam was created by the Receiver. The said suit was decreed, and it was declared that the order of Debt Conciliation Board is null and void and mortgage is not extinguished or redeemed. The order of Debt Conciliation Board is without jurisdiction. The possession of the owners/mortgagor has no legal origin. The mortgagee is entitled for possession. He further submitted that, the Debt Conciliation Board had never ordered for possession. As such, the possession of owner was not legal possession. Hence, the claim of the tenancy under him is no tenancy.
14. He submitted that, the issue as to the legality of the possession of the owner and the alleged tenancy as having no legal origin. He further submitted that, even the record rights produced by the petitioners is from 1950 and in the record of rights, it is clearly mentioned that, the : 18 : tenancy is created as per Court order. Further, from 1946 itself, there were proceedings against owner under Section 145 of the Criminal Procedure Code. In the said proceedings also, the receiver was appointed. It is also decreed that as long as mortgage subsists, possession also remains with the mortgagee. He further submitted that, the Court Commissioner was appointed under the proceedings under Section 145 of the Cr.P.C. and the judgement and decree in O.S. No.153/1950 shows that the receiver appointed by the Civil Court took possession from the Circle Inspector, Nippani, who was appointed as receiver under Section 145 of the Cr.P.C.
15. To support his contention, learned senior counsel relied on findings in the said judgment, to show that the mortgagee is deemed to have been continued in possession and mortgagor had never been in possession and possession, if any of the mortgagor, was wrongful possession and same has no legal origin.
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16. He further submitted that the mortgagee (predecessors of respondent 3 to 7) had filed an application against the petitioners for possession. The said application was opposed by the alleged tenants (predecessors of the petitioners) by raising the very same ground that the tenancy was created by the mortgagor after the order of Debt Conciliation Board and the said tenancy is not created by the receiver. However, it is not in dispute that the very same issue raised in this petition was raised against application for possession, and Civil Court categorically held that the tenancy is created by receiver. The tenants have no independent rights. Their tenancy is not protected under The Bombay Agricultural Tenancy Act (in short referred as `B.A.T Act`) Even provisions of Section 108 of the Mysore Land Reforms Act, 1961 was also considered, and it was held that the tenancy is not protected as it is created by the receiver and the tenants have no rights to claim protection as it not legal tenancy.
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17. Hence, he submitted, that in vies of Section 108 of the Act, petitioners being tenants under receiver are not entitled for occupancy rights.
18. Learned senior counsel referred to application filed by the receiver appointed in O.S. No.153/1950, wherein the receiver has stated that, on 29.06.1951, he took the possession of the suit lands bearing R.S. Nos.78, 79 and 80 of Yamagrani village, Chikodi Taluk, from Circle Inspector (i.e., the receiver appointed under Section 145 Cr.P.C., proceedings). It is also stated that, the suit lands have been leased by Circle Inspector, Nippani to one Ganapathi Mahadev Kadam, the applicant for the year 1951-52 and the tenant in question, and submitted that, it is only in pursuance of the said lease created by the receiver, the name of the petitioners as tenants has been entered in the revenue records for the first time for the year 1950-51. As such, the origin of tenancy even as per the revenue records is in pursuance of the lease created by the receiver appointed in the proceedings under Section 145 Cr.P.C.
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19. Further, the Civil Judge, by order dated 30th August 1969, in O.S. No.153/1950 has held that, the tenant was inducted by the receiver appointed by the Court. As such, the tenant does not become statutory tenant under the provisions of the BTAL Act, in view of Section 88 of the said Act. The said provision bars the tenant under the receiver to set up a plea that he is a statutory tenant. Similarly, the provisions of Section 108 of the Mysore Land Reforms Act, 1951, was also considered and it was held that, the tenancy created by receiver does not become statutory tenancy nor such tenant is protected. He submitted that the order dated 30.08.1969 was passed after hearing Ganapathi Mahadev Kadam, that is the predecessor of the petitioners, and the said order is binding on Ganapati Mahadev Kadam and the petitioners, who claim under him are estopped from claiming to the contrary. Even if he was in possession in 1945 in pursuance of the order passed by the Debt Conciliation Board, it is now held that, the said possession was wrongful possession. By virtue of such wrongful possession, no : 22 : tenancy could be created. Such a tenant does not get any statutory protection or rights. The owner has suffered a decree in O.S. No.153/1950. The tenant had also suffered an order including the finding that his possession is only through the receiver in O.S. No.153/1950.
20. In these circumstances, the issue as to the tenancy of the petitioners is fully concluded by the verdict in judicial proceedings and Ganapathi Mahadev Kadam, being party to the application, it is not open to him claim occupancy rights nor the very same issue could be again agitated.
21. Learned Senior counsel submitted that, the alleged admission of the owners in the plaint, application and the sale deed will not have any effect, nor confer any rights on the petitioners, as such statements being contrary to the judgment and orders passed by Court in judicial proceedings against owner and alleged tenant, an admission by owner to the contrary will not change the relationship. : 23 :
22. It is also not in dispute that, the mortgage was not redeemed, the mortgagee in law deemed to have been in possession and the possession of the mortgagor has no legal origin. It was a wrongful possession. Based on such wrongful possession, no tenancy can be created. As such, admission if any, has no bearing on the issue, which is settled long back.
23. On the question of opportunity, he submitted that, as per the order sheet of the Land Tribunal, the matter was posted on 30.03.2002 and on that day, no party prayed for adducing oral evidence nor any oral evidence was led, in turn, the parties were permitted to file the written arguments. Thereafter, matter was posted to 08.05.2002. Even on that day, no oral evidence was led. Thereafter, respondents 3 to 12 have filed written arguments along with documents and after that, the petitioners filed an application on 15.06.2002 seeking permission to lead oral evidence. However, they did not pursue the said application and the : 24 : matter was listed on 27.01.2002 for arguments and on that day, there was no request for adducing oral evidence. Thereafter, there were two adjournments for want of quorum. On 04.09.2002 also, there was no request for adducing oral evidence and in turn, the very petitioners on 09.09.2002 filed written arguments along with additional documents, and even in the entire written arguments also, there is no whisper about the request for adducing oral evidence was made and it was not granted and as such, written arguments is filed. It is only as an afterthought, now it is alleged that, the petitioners were not given an opportunity to lead oral evidence. Though opportunity was there, no oral evidence was led.
24. Even otherwise, the documents relied by the petitioners before the Tribunal were the plaint in the suit filed by the owners showing the admission of tenancy of the respondents in 1946, application for continuation of receiver showing the petitioners as tenants and the sale deed executed by the owners in favour of tenants mentioning that : 25 : the petitioners were the tenants. Even according to the averments in the plaint, during 1945-46, no tenancy could have been created and even if it is created, the same being based on wrongful possession, it will not create any right in favour of the tenants and is also hit by Section 108 of the Act. Hence, it is not open to the petitioners to contend that they had no opportunity to lead evidence before the Land Tribunal.
25. To support his contention, that even if any lease is created based on wrongful possession, such tenancy would be unlawful. He also relied on the Division Bench decision of this Court reported in ILR 2002 Kar 3055 in the matter of BHIMAPPA CHANNAPPA KAPALI AND OTHERS Vs. BHIMAPPA SATYAPPA KAMAGOUDA AND OTHERS and submitted that, in the said case, a widow having limited right after execution of the gift deed, she continued in possession and creates a lease. This Court has held that, the widow having executed gift deed, even if she was continued in possession and created lease, such creation of : 26 : lease is not lawful and person who does not lawfully enter the land and cultivate, cannot claim the status of a deemed tenant. It is held that possession of the widow was unlawful and any cultivation under her therefore, would be unlawful cultivation. He relied on the findings at para No.10 of the said decision.
26. Sri F.V. Patil continuing the arguments on behalf of respondents 3 to 12 relied on the judgement reported in ILR 1987 KARNATAKA 2797 in the matter of HUVAPPA MAHADEV MENSE Vs. LAND TRIBUNAL and submitted that, in case of any tenancy created through receiver, such tenant has no right to claim occupancy rights in view of the provisions of Section 108 of the Act. He relied on Para 21 of the said judgment.
27. He relied on the judgment of the Division Bench of this Court in W.A. No.6352/2009 and submitted that tenancy must be created in the manner recognized by law in order to attract the provisions of the Karnataka Land : 27 : Reforms Act and also submitted that, this Court had deprecated the method of repeated remands under Article 226 of the Constitution of India.
28. In the light of the submission made by the learned counsel for the parties, the points that arise for consideration are:
1. Whether the petitioners are entitled for grant of occupancy rights having regard to the judgment and orders passed in O.S. No.153/1950 ?
2. Whether the order of the Land Tribunal is violative of the principles of natural justice ?
3. What order ?
29. The facts, which are not in dispute are that, the predecessors-in-title of respondents 3 to 12 had executed registered mortgage in favour of one Rachappa Gulappa Hatrote on 16.08.1890. It is also not in dispute that, the mortgagors had filed an application before the Debt : 28 : Conciliation Board. The said Board, by order dated 26.01.1945, had declared that the debt stood extinguished. However, the contention of the petitioners is that, the Debt Conciliation Board ordered for possession of the lands, the same is contrary to the records. It is also not in dispute that, proceedings under Section 145 of the Cr.P.C. were initiated and a Circle Inspector was appointed as receiver in the said proceedings. It is also not in dispute that, Rachappa Gulappa Hatrote, mortagagee had filed a suit in O.S. No.12/1948, which was renumbered as O.S. No.153/1950 for declaration that the order of the Debt Conciliation Board is null and void and declaring that the mortgage had never extinguished and that the plaintiff - Rachappa, the mortgagee is entitled for possession. It is also not in dispute that, Rachappa, the plaintiff therein had not sought for decree for possession. Though he had sought for amendment of the plaint to include the prayer for possession, the said application was rejected, against which, he had moved the Bombay High Court. Bombay High Court held that if the order of Debt Conciliation Board is declared : 29 : as void, then decree for possession is no more necessary and the plaintiff would be entitled for possession and consequently, Rachappa, the mortgagee is entitled for possession.
30. It is not in dispute that Ganapathi Mahadev Kadam claims his tenancy through the predecessors-in-title of respondents 3 to 12 i.e., the mortgagor. Therefore, the nature of possession of the owner / mortgagor as on the alleged date on which the petitioners claim that they were given land on lease is to be considered. It is stated that in 1945-46, the lease was granted in pursuance of the order dated 26.01.1945. Now, it is not in dispute that, O.S. No.12/1948, which was renumbered as O.S. No.153/1950 was decided by the judgement and decree dated 27.08.1954. As far as the possession claimed by the mortgagor / owner against the mortgagee, the Civil Court in the said judgement and decree, which is binding on the owner, it is held as under:-
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"21. It is also worth nothing that Defendants have not shown any legal origin for their possession, which they claim to have got 5-6 months before the attachment under Section 145. The mere circumstance that the Board wiped out the debt did not entitle the Defendants to possession. As a matter of fact, the Board never passed an order for delivery of possession. Even though the Magistrate came to the conclusion that the Defendants were in possession at the date of the suit, the Defendants have not shown that they came into possession of the lands by some process of Law. It is also not the case of the Defendants that Plaintiffs surrendered possession to them or that they got possession from Plaintiff tenant. The possession of Defendants, if at all they had any would at the best be considered wrongful. Moreover, as mortgagees, the Plaintiffs are entitled to remain in possession without any disturbance from the mortgagor so long as the mortgage is not extinguished by an act of the parties or by operation of Law. So long as there is no decree for redemption and possession, and in view of the fact that the wiping out of the debt by the Board is held to be illegal, the mortgage subsists. The order of the Magistrate under Section 145 does not extinguish the possessory mortgage of the Plaintiff : 31 : and so long as the mortgage subsists, the mortgagor is legal bound to allow peaceful enjoyment of the suit land to the mortgagee. The Magistrate's finding in Ex.104, is therefore, of no avail as against Plaintiffs, who have a title to possession superior to that of Defendant.
22. It was further argued that the possession of defendant cannot be disturbed now as the remedy is barred under Art. 47 the Limitation Act and under Section 28 of the Lmitation Act Plaintiff's right to possession is permanently extinguished. The Magistrate's Order has certainly not the effect of extinguishing the mortgage. This suit is for a declaration that the mortgage subsists and the Plaintiffs are entitled to remain in possession as mortgagees till redemption or extinguishment of the debt in due course of law. It is also to be borne in mind that the possession at the date of the suit was that of the Magistrate and not of any party. Subsequently, the possession came to be handed over to the Receiver appointed by this Court, and it is clear that the Court's possession enures for the benefit of the rightful claimant. As the mortgage still subsists, Plaintiffs is the person entitled to possession. If he gets a declaration to that effect, it is sufficient. As held in Sundaresa Vs. Sarvajana : 32 : Virdhi Nidhi (I.L.R.1939 Mad.986), it was not necessary for the appellant to ask for any thing more than a mere declaration, in a case where the property is in possession of a Magistrate, In that case the jewels were in the possession of the Magistrate at the time of institution of the suit, and were, therefore, in custodial egis, and the Court must deliver them to the person who shows a title. The suit for mere declaration and injunction is sufficient and is, therefore, tenable in its present, form. I answer issue 7 in the affirmative. "
31. In the said judgment, it is declared that, the order of the Debt Conciliation Board is void and the plaintiff
- mortgagee is entitled for possession. It is further held that, the possession of the mortgagor, owner was unlawful and it has no legal origin. Since the mortgage was not redeemed, the possession was not lawfully taken from the mortgagee, the Civil Court held that the possession of the mortgagor was wrongful possession. Hence the mortgagee is deemed to be in possession in law. These findings are binding on the owner. If the owner himself had no legal possession in 1945, the possession of Ganapathi Mahadev Kadam (predecessors : 33 : of the petitioner) would not become lawful or nor it would be lawful cultivation.
32. The Division Bench of this Court in the matter of BHIMAPPA CHANNAPPA KAPALI (referred supra) has observed thus:
10. "Lawfully cultivating" must have some foundation in a legal right to cultivate the property.
Lawful cultivation cannot be established without concomitant existence of a lawful relationship, Lawful cultivation must have origin in a legal right to cultivate the property. In the absence of any such right to cultivate, it cannot be said that merely because a person is cultivating the land he is held to be in lawful cultivation. A person who cultivates the land against the wishes of the owner cannot be said to be in lawful cultivation. Merely because no action is taken against him and he has continued to cultivate for a considerable period of time would not make his cultivation lawful. The essence of lawful cultivation is that one should enter possession of the land under some colour of right and cultivate the land as matter of right, otherwise it cannot be said that he is in lawful cultivation of the land in question. Therefore, in the absence of : 34 : any legal right a person who is cultivating the land cannot claim a status of deemed tenant under Section 4 of the Act."
33. This Court has held that, there must be some colour of right to enter into possession. Now, in the decree of the Civil Court in O.S. No.153/1950, it is held that the possession of the owner is not legal and it was wrongful, even if such possession is continued, it would be wrongful. It would not be a possession under any colour of right as the order of Debt Conciliation Board was declared as void. Once it is declared as void, it is deemed to have been non-est i.e., there cannot be any right to claim under the said order. Barring this, it is not the case of Ganapathi Mahadev Kadam that, he was put in possession by any other means. If the possession of the owner was not lawful, he could not have created any lawful lease in favour of Ganapathi Mahadev Kadam.
34. Apart from this, the document that is produced by the petitioners relates to the mutation entry, same is for : 35 : the year 1950-51. Against the very same Ganapathi Mahadev Kadam, there was proceedings in an application filed by the receiver in O.S. No.153/1950, wherein, the Civil Court, by its order dated 30th August 1969, not only held that, possession of the petitioners is through the receiver, but has also held that "he has entered the land as a tenant through the Court receiver since 1950-51 and he is in actual possession for nearly 19 years". The mutation entry also referred to the Court order. Column No.10 of the mutation entry specifically mentions that, the entry of the name of the petitioner - Ganapathi Mahadev Kadam is in pursuance of the Court order, which means that, the mutation entry is not independent or nor by virtue of any independent right. But, it is because of the order of the appointment of the receiver from whom, Ganapathi Mahadev Kadam had taken lease and to that effect, the entry has been made. Hence, it cannot be claimed that the it is a tenancy created by the landlord. : 36 :
35. In the proceedings for possession, the tenant was a party and the said application was allowed, and it was observed that:
" It is also not disputed that the present tenant was inducted as a tenant by the receiver appointed by the Court. Now that the suit is decreed in favour of the plaintiff that the plaintiff would say that the receiver should be directed to deliver the properties from the tenant who was inducted as a tenant when the property was in the possession of Receiver by an order of Court."
36. Admittedly, Ganapathi Mahadev Kadam, the alleged tenant has suffered the said finding. Further, in the said proceedings, provisions of Section 88 of the Bombay Tenancy Act, 1956, which is analogous to Section 108 of the Mysore Land Reforms Act, now Karnataka Land Reforms Act, was also considered and it is held that:
"R.R. extracts produced by tenant himself clearly shows that the receiver was appointed in respect of lands in that suit." It is further held that,"
any lease created by a receiver is terminated with the termination of the management of the Receiver. Therefore, the present tenant who was : 37 : inducted as a lessee by a receiver appointed by the Court cannot take up the plea that he cannot be evicted from the land as he is a statutory tenant."
37. Thus, by this order, it is held against Ganapathi Mahadev Kadam that his possession is traceable only through the receiver and entries are traceable only through the receiver which is co-terminus with the order of the Court.
38. In the light of the said finding, the order dated 30th August 1969 was also called in question before this Court in Civil Revision Petition No.1560/1969. In the said revision petition, the order of the Civil Court dated 30th August 1969 was confirmed and the tenant sought for time to vacate the land up to the end of 1969. Thus, the said finding is also confirmed by this Court and has become final between the parties.
: 38 :
39. It was contended by the learned counsel for the petitioners that, it is only an order on I.A. and does not have any bearing on the proceedings in the Land Reforms Act by virtue of the Karnataka Act No.31 of 1974 and Section 133 of the Act. He relied on Karnataka Act No.31 of 1974 amending the provisions of clause (a) of Sub-section (2) of Section 133 of the Karnataka Land Reforms Act, 1961 and submitted that, notwithstanding any judgement, decree or order of any Civil Court, the Tribunal constituted under Section 48 of the Karnataka Land Reforms Act, 1961 shall enquire into any claim for registration as occupant made by a person who was a tenant within the meaning of the said Act immediately prior to 1st March 1974 and who by reason of any such judgement, decree or order subsequent to the said date been dispossessed of the land of which he was a tenant or is any way precluded from pleading this tenancy, and direct, if the merits of the case so warrant, that such person be registered, subject to the other provisions of the said Act, as occupant of such land.
: 39 :
40. The said provision requires that, the applicant must be a tenant as on 01.03.1974. This Court has held that, the tenant means person lawfully cultivating the land as a tenant and his cultivation must be lawful. In view of the provisions of Section 108 of the Act, if the tenancy is traceable only to the receiver and possession, if any earlier being wrongful, such person being not in lawful possession and cultivation being not lawful is not entitled for grant of occupancy right as there is a statutory bar under Section 108 of the Act. As such, the provision relied upon by the petitioners is only applicable to the person, who was a tenant lawfully cultivating the land as on 01.03.1974 within the meaning of definition of `tenant`, which means lawful tenant. The Division Bench of this Court in BHIMAPPA`s case (referred supra), has held that, cultivation must be lawful and must be based on some colour of right and not otherwise. Mere possession does not create right to claim tenancy. As such, the said provision of amending Act No.31 of 1974 has no application to the facts and circumstances of the case.
: 40 :
41. Division Bench of this Court in a judgement reported in ILR HUVAPPA`s case (referred supra) has held that, tenancy created by the receiver does not confer any right on such person to claim occupancy rights.
"21. The main provisions of Section 108 make it clear that nothing in the provisions of the Land Reforms Act except Section 8 (relating to rent) shall apply to lands taken under the management of Court of Wards. That means, provisions such as Sections 4, 45, 48-A etc., are not at all applicable. In fact, a person inducted to cultivate the land by the Court of Wards does not even come with in the definition of 'tenant' under the Land Reforms Act. The land falls outside the over the management. He comes under proviso (b) which is specific and govern the tenancy created during the period of management by Court of Wards. Public interest requires that those entrusted with the responsibility of managing an estate or land under statutory powers should not burden the estate or land permanently. Such managements by Court of Wards or Receivers appointed by any Court, are temporary in duration. Their task is to preserve the properties for the real title holder. This purpose will be defeated, if, it the : 41 : course of management they are constrained to have lands cultivated by third parties and those cultivations are to be there permanently, resulting in loss of title to the title holder.
Therefore, proviso(b) in mandatory terms, says that such tenants shall be dispossessed and the possession shall be delivered to the persons lawfully entitled to such possession on the cessation of management by Court of Wards, etc.,"
42. As regards the contention of the petitioners that opportunity was not provided to lead oral evidence before the trial Court is concerned, the dates themselves speak of the opportunity afforded to the petitioners. Admittedly, on 30th March 2002, the order sheet of the land Tribunal shows that no oral evidence was led and parties were permitted to file written arguments. On 08.05.2002 also, no oral evidence was led. In turn, on 18.05.2002, the owners filed written arguments along with documents. No doubt, on 15.06.2002, petitioners filed application for leading oral evidence. If the petitioners were really serious about leading oral evidence, when the matter was set down for arguments on 29.07.2002, : 42 : they could not have kept quiet without making a request to lead oral evidence. There was no request made on the said date. Thereafter, the matter was adjourned twice for want of quorum. On 04.09.2002 also, there was no request for leading oral evidence. In turn, on 09.09.2002, petitioners themselves filed written arguments with documents and in the entire written arguments, there is no whisper that they were not afforded opportunity to lead oral evidence. Before the Tribunal, though petitioners filed an application for leading oral evidence, they themselves abandoned the same, and instead filed written arguments. Hence, the petitioners now can not claim that they had no opportunity to lead oral evidence.
43. Even otherwise, the documents produced by the petitioners were mainly the plaint in the suit filed by the owners for redemption of mortgage, where the owner has stated that, the tenancy was created in 1945. The said contention is no more available because the owner himself was not in lawful possession as the order of Debt : 43 : Conciliation Board was declared as void. The sale deed executed by the owner and the application filed by the owner will not have overriding effect on the judicial pronouncement. Nor admission or plea would alter the judgment. The owner, who suffered the judgment and decree, is bound by the same. He cannot overcome the binding effect of the judgment by his admission. The very fact that the suit is one for redemption of mortgage, it presupposes that, the mortgagee is in possession.
44. As far as finding of the Tribunal on possession is concerned, it could be read as lawful or legal possession with the mortgagee. As far as the finding with regard to grant of occupancy rights is concerned, the Land Tribunal on proper appreciation of the evidence and the legal aspects, has passed the order and in my opinion, the same is based on sound reasoning and just and proper.
45. This court repeatedly has held that the matters should not be remanded, just for asking, in this case parties : 44 : are litigating for several decades, even on consideration of evidence, I do not find any reason to remand the matter. As such, I find the order of the Land Tribunal does not call for interference.
Accordingly, writ petition fails and same is dismissed.
Sd/-
JUDGE sma