Karnataka High Court
Ningayya Erayya Hiremath vs Land Tribunal on 21 September, 1988
Equivalent citations: ILR1988KAR2915, 1988(3)KARLJ60
JUDGMENT
Prem Chand Jain, C. J.
1. Ningayya Erayya Hiremath has filed this appeal against the Judgment of a learned single Judge of this Court dated March 13, 1985 by which Writ Petition No. 19787/81 filed by him has been dismissed. In order to appreciate the controversy certain salient features of the case may be noticed.
2. Land bearing survey number 127 of the village Naganoor, Taluk - Mundgod, District - Uttara Kannada, measures 11 acres 34 guntas. Out of the sard land an area of 5 acres and 12 guntas belongs to Rudragowda Bin Gurappagowda respondent No. 5 and an area of 6 acres and 22 guntas belongs to one Danappa Nagappa Vaddar. Rudragowda Bin Gurappagowda, respondent No. 5, had leased the area belonging to him to Siddawwa Kom Uduchappa Vaddar respondent No. 3. It transpires that the said respondent No. 3 had, sometime in the year 1972, raised a loan by mortgaging her tenancy rights in favour of a Co-operative Society and as she failed to pay the said loan her tenancy right was brought to sale and a sale certificate was issued by the Sale Officer under the Karnataka Co-operative Societies Act in favour of the appellant, who was the purchaser of the tenancy rights. Claiming himself to be the tenant of the land after the purchase of the tenancy rights under the sale certificate issued by the Sale Officer, the appellant filed an application before the Land Tribunal for conferment of occupancy rights on the ground that he had become tenant of the land sometime in the year 1972 after he was put in possession of the same by the Sale Officer pursuant to the sale certificate. Siddawwa Kom Uduchappa, respondent No. 3, also filed application in Form No. 7 claiming occupancy rights as rival tenant, on the plea that notwithstanding the sale of the tenancy rights in favour of the appellant, she continued to be in possession of the land and therefore she was entitled to occupancy rights. The Land Tribunal (by majority decision) on the material on record, came to the conclusion that respondent No. 3 continued to be in possession of the land notwithstanding the sale of tenancy rights in favour of the appellant. Accordingly, the order dated September 10, 1981 conferring occupancy rights on respondent No. 3 was passed by the Land Tribunal.
Feeling aggrieved from the order of the Land Tribunal the appellant filed Writ Petition No. 19787/1981 and as earlier observed, the Writ Petition was dismissed being without any merit.
3. Though the learned single Judge assumed that the appellant was put in possession of the land by the Sale Officer pursuant to the sale certificate in his favour, yet in view of the provisions of Section 22 (prior to the amendment in the year 1974) of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as the Act), which read as under:
"22. Eviction of tenant for default, etc., (1) Notwithstanding any agreement, usage, decree or order of a Court of law, or anything contained in any enactment or law repealed by Section 142 or in any other law in force before the commencement of such enactment or law, and subject to the provisions of Section 14 no person shall be evicted from any land held by him as a tenant except on any of the following grounds, namely :-
(a) that the tenant has failed to pay the rent of such land on or before the due date during two consecutive years, provided the landlord has issued every year within three months after the due date a notice in writing to the tenant that he has failed to pay the rent for that year;
(b) that the tenant has done any act which is permanently injurious to the land;
(c) that the tenant has sub-divided, sublet or assigned the land in contravention of Section 21;
(d) that the tenant has failed to cultivate the land personally for a period of two consecutive years;
(e) that the tenant has used such land for a purpose other than agriculture or allied pursuits;
Provided that no tenant shall be evicted under this subsection unless the landlord has given six months' notice in writing informing the tenant of his decision to terminate the tenancy and the particulars of the ground for such termination and within that period the tenant has failed to remedy the breach for which the tenant is proposed to be evicted.
Explanation - A tenant shall be deemed to have failed to pay rent payable by him to the landlord for any year, if he does not pay it before the end of June next after the expiry of the year.
(2) Nothing in Sub-section (1) shall apply to the tenancy of any land held by a permanent tenant unless by the conditions of such tenancy the tenancy is liable to be terminated on any of the grounds mentioned in the said sub-section.
(3) Notwithstanding anything contained in Sub-section (1), the tenancy of any land held by a tenant who is a minor, a widow, an unmarried woman or who is subject to physical or mental disability or who is a soldier in service in the Armed Forces of the Union or a seaman shall not be liable to be terminated under the said sub-section only on the ground that such land has been sublet by or on behalf of the said tenant."
the tearned single Judge has held that the application of the appellant was not maintainable as he has no locus standi at all to claim occupancy rights in the land in question and therefore his application has rightly been rejected by the Tribunal.
4. It was contended before us by Mr. Gunjal, learned Counsel for the appellant, that the sale of the tenancy rights made in favour of the appellant was legally permissible under the Act, that under that sale the appellant had become tenant, that possession of the land was delivered to the appellant on March 27, 1973, that the appellant was cultivating the land on the appointed date as a tenant, that provisions of Section 22 of the Act have no applicability to the facts of the case in hand and that the appellant is entitled to conferment of occupancy rights. On the other hand, Mr. Ramachandra, learned Counsel for the contesting respondents, submitted that as a result of the sale the appellant did not become a tenant automatically, that before claiming a right as a tenant the appellant is to show that he had obtained possession of the land in dispute in accordance with law, that the appellant does not satisfy the requirements of the definition of a tenant as given in Section 2(A)(34) of the Act, that the Act contemplates actual possession and cultivation and that the appellant not being in possession of the land, cannot claim occupancy rights over the land in dispute.
5. We have given our thoughtful consideration to the entire matter and find substance in the contentions of the learned Counsel for the appellant. The learned single Judge proceeded to decide the case on the assumption that the appellant is in possession of the land in dispute. Hence we are also proceeding on that assumption especially when the documents produced on the record (Annexures A-1, A-2 and A-3) go to show the actual possession of the appellant of survey No. 127 since the year 1973.
6. On the respective contentions of the learned Counsel for the parties, the short question that arises for consideration is whether a tenant whose rights have been validly sold in a Court auction and are purchased by another person who, as a result of that sale, is put in possession of the land sold, can still claim a right over that land as a tenant on the ground that she was not evicted in accordance with the provisions of Section 22 of the Act and whether a person who has purchased the tenancy rights and is put in possession does not become a tenant and cannot claim occupancy rights over that land?
7. Section 22 of the Act has been reproduced in the earlier part of the Judgment. Its perusal shows that certain grounds are specified on the existence of which a person can be evicted from any land held by him as a tenant. In other words, a person who is a tenant of any land can be evicted only on any one of the grounds specified in Section 22 of the Act. In this case, admittedly no proceeding for eviction took place under Section 22 of the Act. The case of the appellant is that he was put in possession of the land after the issuance of the sale certificate on March 27. 1973. This fact is not denied by the respondents as no written statement has been filed in response to the notice issued in the Writ Petition, with the result, the averment made in the Writ Petition that the appellant was put in possession of the land in dispute on March 27, 1973 has to be accepted. The effect of the sale coupled with the delivery of possession would be that the appellant stepped into the shoes of respondent No. 3 whose tenancy rights he had purchased. In this manner the appellant became the tenant of the land in dispute and respondent No. 3 lost her tenancy rights.
8. Further as we look at the provisions of Section 22 of the Act, we find that the same have no applicability to the facts of the case in hand. In the instant case, the tenant was not being evicted from the land in dispute, but, as a result of the sale, the tenant lost her tenancy rights in the land in dispute. In other words, she ceased to be a tenant of the land in dispute. At best, after the sale of the tenancy rights, the status of respondent No. 3 became that of a trespasser. Hence, question of filing an application for eviction of such a person under Section 22 of the Act does not arise as there is no relationship of landlord and tenant between the parties.
9. Moreover/Section 21(3) of the Act, which reads as under:
"21 (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 his interest in the land in favour of the State Government, a financial institution, a Cooperative Land Development Bank, a Co-operative Society, a company as defined in Section 3 of the Companies Act, 1956 in which not less than fifty-one per cent of the paid up share capital is held by the State Government or a Corporation owned or controlled by the Central Government or the State Government or both, for development of land or improvement of agricultural practices; and without prejudice to any other remedy provided by any law, in the event of his making default in payment of such loan in accordance with the terms and conditions on which such loan was granted, it shall be lawful to cause his interest in the land to be attached and sold and the proceeds to be utilised in payment of such loan."
permits taking of a loan by a tenant and mortgaging or creating a charge on his interest in the land held by him and such interest is liable to be attached and sold. The learned single Judge, as is apparent from the discussion, has found that Section 22 of the Act overrides the provisions of Section 21 and is a clear bar for taking a view that the provisions of Section 21(3) continue to operate and confer tenancy rights on the purchasers of the tenancy rights in the land. We are afraid, we are unable to agree with this approach of the learned single Judge. Section 21(3) of the Act, as has been observed earlier, permits a tenant to take a loan and mortgage or create a charge on his interest in the land occupied by him and in the event of default in payment of the loan, it shall be lawful to cause his interest in the land to be attached and sold and the proceeds to be utilised in payment of such loan. Once the sale takes place the tenant loses all interest in the land occupied by him as a tenant. He ceases to be a tenant. He becomes a trespasser. Resultantly, in such a case, the provisions of Section 22 of the Act would not be attracted at all. As we look at the two provisions, we find no conflict. The two provisions operate independently. Section 22 would apply only when there is a relationship of landlord and tenant. Section 21(3) envisages entirely a different situation, that is, that it talks of attachment or sale of the interest of a tenant who has taken a loan and mortgaged or created a charge on his interest in the land. Section 21(3) does not in any way limit the operation of Section 22. In case the approach of the learned single Judge is accepted, it is likely to lead to anomalous results inasmuch as that even after losing all interest in the land as a result of the sate, the tenant not having been evicted in accordance with the provisions of Section 22 would be entitled to claim occupancy rights over the land in which he is left with no interest. This could never be the intention of the legislature in enacting the aforesaid two provisions. As earlier observed the two Sections, i.e., 21(3) and 22 can operate independently without destroying the effect of each other.
10. An argument was also sought to be built that before claiming occupancy rights the appellant has to show that he is a tenant as defined under Section 2(A) (34) of the Act, which reads as under:
"2(A)(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;
(iia) 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.
Explanation - A person who takes up a contract to cut grass, or to gather the fruits or other produce of any land, shall not on that account only be deemed to be a tenant"
and that as the appellant is not a tenant, he would not be entitled to the occupancy rights. In our view, this contention has no merit. The appellant is a tenant for all intents and purposes. He is in possession and cultivating the land in dispute. After the sale, for all intents and purposes, he has stepped into the shoes of respondent No. 3 who has lost all interest in the land in favour of the appellant. With respect, we are unable to agree with the learned single Judge that the appellant does not satisfy any of the conditions laid down in Section 2(A)(34) of the Act. As a result of the aforesaid discussion we find that the appellant became tenant of the land in dispute pursuant to the sale of the tenancy rights of respondent No. 3 made in his favour, that the appellant was put in possession of the land in dispute on March 27, 1973 and that he being in possession of the land as a tenant is entitled to conferment of occupancy rights therein.
11. No other point arises for consideration.
12. For the reasons recorded above, we allow this appeal, set aside the Judgment of the learned single Judge and the order of the Land Tribunal dated 10-9-81 and direct the Tribunal to confer occupancy rights in the land in dispute on the appellant. In the circumstances of the case, we make no order as to costs.