Karnataka High Court
Babu Yallappa Sanadi vs Land Tribunal, Belgaum And Others on 7 July, 2000
Equivalent citations: ILR2000KAR2872, 2000(6)KARLJ44, 2000 AIR KANT HCR 146, 2000 A I H C 3994 (2000) 6 KANT LJ 44, (2000) 6 KANT LJ 44
Author: K.R. Prasad Rao
Bench: K.R. Prasad Rao
ORDER K.R. Prasad Rao, J.
1. This revision petition is filed against the orders passed by the District Land Reforms Appellate Authority, Belgaum, in Appeal No. RALR 246 of 1986, dated 29-3-1990 confirming with modification the order of the Land Tribunal, Belgaum in case No. KLR Bastwad/SR 119+120+122+123+127+128+95+8+10 relating to the land in dispute in Sy. No. 27 of Bastwad Village.
2. The revision petitioner filed Form 7 before the Land Tribunal claiming occupancy rights in respect of 1 acre 27 guntas of land in Sy. No. 27 of Bastwad Village. The original owner contested the said proceedings. The Land Tribunal after holding an enquiry, came to the conclusion that, though the land was a tenanted land, the revision petitioner was not in possession of the said land by the notified date, since his father surrendered the tenancy rights in favour of the original owner and ordered for vesting the land in State. The correctness of the said order has been questioned both by revision petitioner and also by the 3rd respondent by filing writ petitions before this Court. The present revision petitioner filed W.P. No. 1498 of 1992 which was subsequently transferred to the Land Reforms Appellate Authority after the said authority was constituted on amendment of the Karnataka Land Reforms Act and it was numbered as RALR 234 of 1986. Respondent 3 filed W.P. No. 8649 of 1982, it was also transferred to the Land Reforms Appellate Authority and it was numbered as Appeal No. RALR 246 of 1986. Since the revision petitioner denied that he has given any statement before the Land Tribunal admitting the surrender of the land, the Appellate Authority permitted both parties to adduce their evidence. Accordingly, both parties have adduced their evidence. On appreciation of the said evidence adduced, the Appellate Authority came to the conclusion that there was valid surrender of tenancy right in respect of the land in dispute by the father of the present petitioner in the year 1956 and thereafter, the original owner has taken possession of the said land and sold the same in favour of the respondent 3 in the year 1972 under the registered sale deed executed by him and put him in possession of the land in dispute on 9-2-1972. The Appellate Authority further found that, either the present petitioner or his father was never in possession and cultivation of the land in dispute subsequent to the year 1956 and that from the year 1957 till the year 1972 the previous owner of the land Hazarat Sab Mira Sab Inamdar was in possession of the said land as per the entries made in the RTC registers and the mutation entry No. 1356 dated 18-2-1957 Ex. B-16 and that after 1972 respondent 3 purchased the above said land and came in possession of the same. The Appellate Authority therefore, dismissed the appeal filed by the present revision petitioner and allowed the appeal filed by respondent 3 setting aside the order passed by the Land Tribunal directing the vesting of land in dispute in State. The legality and correctness of the said order of the Appellate Authority is now challenged in the present proceedings by the revision petitioner.
3. I have heard the arguments advanced by the learned Counsel appearing on both sides.
4. Learned Counsel for the revision petitioner Sri C.S. Kothavale has vehemently contended that the Appellate Authority proceeded on a wrong assumption that there was a valid surrender of tenancy rights by the petitioner's father in favour of the original landowner Hazarat Sab Mira Sab Inamdar in the year 1956 and has erroneously relied upon the judgment of the Civil Court in O.S. No. 224 of 1972 and R.A. No. 12 of 1973 in coming to the conclusion. He further contended that the Land Tribunal as well as the Appellate Authority have not considered the question as to whether there was valid surrender of tenancy rights by the father of the revision petitioner in favour of the said original owner in accordance with the provisions of Section 5(3)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 without summoning the records pertaining to the surrender of the land in dispute before the Mamlatdar and without production of even the certified copy of the order passed by the Mamlatdar in the said proceedings to the Appellate Authority, has erroneously assumed that, there was valid surrender of tenancy rights by the revision petitioner's father. It is further contended by him that the fact that the father of respondent 3 has obtained a decree for permanent injunction in the suit filed by him in O.S. No. 224 of 1972 in the Court of II Additional Munsiff, Belgaum, which was confirmed in R.A. No. 12 of 1973 on the file of the Court of I Additional Civil Judge, Belgaum, in respect of the land in dispute against the present revision petitioner, is not of any relevance or importance to consider the question as to whether the petitioner must be deemed to be in possession of the land in dispute as a tenant, in the absence of proof of the fact of valid surrender of tenancy rights by his father in favour of the original owner. It is further contended by him that the Civil Court has no jurisdiction to consider the question as to whether the revision petitioner is a tenant in respect of the land in dispute by virtue of the provisions of Section 133 of the Karnataka Land Reforms Act and in view of this legal position, the finding recorded by the Civil Court in the above suit that there was surrender of tenancy rights by the father of the petitioner, in favour of the original owner of the land in dispute is not binding on the Land Tribunal, since it is a finding recorded by the Civil Court without jurisdiction. It is therefore, contended by him that, the Appellate Authority was not justified in presuming that there was valid surrender of tenancy rights by the father of the revision petitioner and the consequent delivery of possession of the land in dispute to the owner in the year 1957.
5. In reply to these submissions, learned Counsel for respondent 3 contended that the Appellate Authority has taken into consideration several other circumstances in coming to the conclusion that, there was valid surrender of tenancy rights by the father of the revision petitioner, in favour of the original owner and one of the said circumstances is that the father of the revision petitioner never challenged the validity of the said surrender during his lifetime, though he was alive till the year 1964-65. Another circumstances relied upon by the Appellate Authority is that the fact that either the revision petitioner or his father never challenged the validity of the surrender of another land bearing Sy. No. 299, which was also surrendered along with the land in dispute at the same time and the further fact that the revision petitioner allowed the original owner to sell away the land. He further contended that, in the above civil suit, a certified copy of the order passed by the T.A.K. Bel-gaum is produced and marked as Ex. P-5 to show that the surrender of the above lands in Sy. Nos. 229 and 27 of Bastwad Village by the father of revision petitioner Y.K. Sanadi, has been sanctioned by the Tahsildar by an order No. TED 390 of 1956, dated 6-10-1956 that in furtherance of the said order, a direction was given to delete the name of the tenant in the record of rights in respect of the above said lands and to prepare the kabja pavathi and panchanama reports after giving possession of the land to the original landowner Hazarat Sab Mira Sab Inamdar, after allowing the tenants to take the standing crops. He further pointed out that, in the same certified copy, there are clear statements given by the said tenant and the landowner to the effect that, the tenant has delivered possession of the land to the owner after removing the standing crops and that the owner has taken possession of the said land. He pointed out that, on the basis of the said document produced by the respondent 3, the Trial Court as well as the Appellate Court came to the conclusion that, the original owner of the land came in lawful possession of the suit land w.e.f. 6-10-1956 and that, thereafter, he sold the said land in favour of respondent 3 and put him in possession of the said land and granted a decree for permanent injunction in favour of respondent 3. He therefore contended that, there was no necessity for the Appellate Authority to go into the question as to whether there was valid surrender of tenancy rights by the father of the present revision petitioner in favour of the original owner, when the said finding has been recorded by the Civil Court in the above suit and the Appellate Authority was justified in holding that there was valid surrender of tenancy rights and the tenant was not in possession of the said land after 6-10-1956. He also filed application I.A. I. under Order 41, Rule 27 of the Civil Procedure Code seeking for permission to produce the certified copy of the same order marked as Ex. B-5 in the above civil suit, to be taken into consideration for the purpose of deciding the present revision petition. But, the learned Counsel for the revision petitioner vehemently opposed for allowing this application submitting that respondent 3 has not disclosed in his affidavit as to why he could not produce this document either before the Land Tribunal or before the Appellate Authority and thus, has not made out the case for production of this document at this belated stage in the present proceedings. He further submitted that, since the revision petitioner had no opportunity to cross-examine respondent 3 with reference to this document, which is now sought to be produced, the matter requires to be remanded to the Land Tribunal for affording an opportunity to both parties to adduce their further evidence, if this document were to be received by way of additional evidence in this Court.
6. I have carefully gone through the orders passed by the Land Tribunal as well as by the Appellate Authority. Both the said authorities have not examined the question as to whether there was valid surrender of tenancy rights by the father of the revision petitioner in favour of the original owner in respect of the land in dispute in accordance with the procedure contemplated under Section 5(3)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 read with Rule 2-A of the Rules framed thereunder, the Appellate Authority mainly relied upon the Ending recorded by the Civil Court in this regard, in suit, O.S. No. 224 of 1972 by the Court of Munsiff, Belgaum, which was confirmed in Appeal, R.A. No. 12 of 1973 on the file of the I Additional Civil Judge, Belgaum. But, as rightly pointed out by the learned Counsel for the revision petitioner, the Civil Court had no jurisdiction to decide the said question in view of the specific bar under Section 133 of the Karnataka Land Reforms Act. This position is made clear by a Full Bench decision of this Court in the case of Koraga Marakala and Another v Smt. Kamala and Others. In a decision of the Supreme Court in the case of Gundaji Satwaji Shinde v Ramchandra Bhikaji Joshi , it was held that:
"The combined effect of Sections 70, 85 and 85-A of the Act is that where in a suit properly constituted and cognizable by the Civil Court upon a contest an issue arises which is required to be settled, decided or dealt with by a Competent Authority under the Tenancy Act, the jurisdiction of the Civil Court to settle, decide or deal with the same is not only ousted but the Civil Court is under a statutory obligation to refer the issue to the Competent Authority under the Tenancy Act to decide the same and upon the reference being answered back to dispose of the suit in accordance with the decision of the Competent Authority under the Tenancy Act.
Where the plaintiff sued for specific performance of a contract for sale of agricultural land governed by the provisions of the Tenancy Act in the Civil Court and the defendant appeared and raised a contention that in view of the provisions contained in Section 63 of the Tenancy Act the plaintiff not being an agriculturist is barred from purchasing the land, the issue would directly and substantially arise whether the plaintiff is an agriculturist. Such an issue being within the exclusive jurisdiction of the Mamlatdar, it is incumbent upon the Civil Court to refer the issue to the Competent Authority under the Tenancy Act and the Civil Court has no jurisdiction to decide or deal with the same".
Thus, it is clear from the above position of law that the Civil Court has no jurisdiction to go into the questions, which are to be specifically decided by the Competent Authority under the Bombay Tenancy and Agricultural Lands Act, 1948 or by the Land Tribunal under the provisions of the Karnataka Land Reforms Act. Thus, where the question of validity of the surrender of tenancy rights in respect of the land in dispute has been raised by the tenant, in the present proceedings, before the Land Tribunal, the said question ought to have been decided by the Land Tribunal itself, on the basis of the evidence adduced by the parties without reference to any incidental finding given by the Civil Court in this regard in the above suit. Since the Appellate Authority has mainly relied upon the judgment rendered in the above civil suit by the Trial Court as well as by the Appellate Court to base its conclusion that there is valid surrender of tenancy rights and the said question has not been independently considered and decided by the Land Tribunal as well as by the Appellate Authority, on the basis of the evidence adduced before them, I find that the above said finding recorded by both the authorities on that question cannot be sustained. Since the certified copy of the order, Ex, P-5 produced in the Trial Court in the above suit has not been produced either before the Land Tribunal or before the Appellate Authority, by the respondent 3, the revision petitioner had no opportunity to cross-examine the respondent 3 and his witnesses with reference to the said document and to submit his say in the matter regarding the said document. It is also to be noted at this stage that the revision petitioner has unequivocally stated in his evidence given before the Appellate Authority that either himself or his father were not aware of the mutation entries made in the record of Rights or the entries made in the R.T.C. Register since they are illiterate people and since they have not verified the said entries. He has also taken a stand that either himself or his father never delivered possession of the land in dispute either to the previous owner or to the respondent 3, who purchased the said land from the previous owner. It is also his specific case that there was no valid surrender of tenancy rights by his father in respect of the land in dispute. He has also explained the reason as to why they have not objected for the sale of the land in Sy. No. 299 by the original owner, which was also a subject-matter of the surrender of the tenancy rights by stating that he agreed for sale of the said land since there was an understanding between himself and the previous owner that he is entitled to claim occupancy rights in respect of the land in dispute by riling Form 7. Further, it is also pointed out by the learned Counsel for the revision petitioner that a tenant has got a right of pre-emption to purchase the tenanted land and if he does not wish to purchase the same, he can permit the landowner to sell the same to others subject to the condition that he must be permitted to continue as a tenant in respect of the said land even under the purchaser, even according to the provisions of the Karnataka Land Reforms Act. He, therefore submitted that the fact that the revision petitioner permitted the previous owner to sell the other land in Sy. No. 299, which is also the subject-matter of the surrender of the tenancy rights, does not lead to an inference that he has not challenged the validity of the surrender in respect of both the lands. It is further pointed out by him that according to the tenancy register extract for the year 1958 Ex. D-5 produced by the revision petitioner before the Appellate Authority, which is at page 279 of the records of the Land Tribunal, there is no order passed by the Mamlatdar approving the surrender of the tenancy rights and there is also no mention of the date on which the order is passed in the said register. It is also pointed out by him that even according to the said tenancy register extract, there is no order of the Mamlatdar evidencing the surrender of the tenancy rights in respect of the land in dispute. It is therefore, contended by him that the validity of the surrender of tenancy rights by the father of the present revision petitioner in favour of the previous owner in respect of the land in dispute is seriously in dispute and the said question ought to have been independently examined by the Land Tribunal by summoning the records pertaining to the applications submitted for surrender of tenancy rights by the parties, containing the order passed thereon by the Tahsildar. He relied upon a decision of the Supreme Court in Ram-chandra Keshav Adke (dead) by L.Rs v Govind Joti Chavare and Others, wherein it was held that:..
"A combined reading of Section 5(3)(b) with Rule 2-A which prescribes the manner of verification of a surrender shows that a surrender of tenancy by a tenant in order to be valid and effective must fulfill the following requirements: (1) It must be in writing. (2) It must be verified before the Mamlatdar. (3) While making such verification the Mamlatdar must satisfy himself in regard to two things, namely, (a) that the tenant understands the nature and consequences of the surrender, and (b) that it is voluntary. (4) The Mamlatdar must endorse his finding as to such satisfaction upon the document of surrender.
The imperative language, the beneficent purpose and importance of Section 5(3)(b) and Rule 2-A for efficacious implementation of the general scheme of the Act unerringly lead to the conclusion that those provisions were intended to be mandatory and not directory.
The requirement as to the recording of its satisfaction by the authority in the manner prescribed by the rule, is the substance of the matter and not an empty formality. In the absence of the requisite endorsement, therefore, it cannot be said that there has been even a substantial compliance with the statutory requirements.
Failure to comply with the mandatory provisions as to verification of the surrender vitiates the surrender and renders if non est for the purpose of Section 5(3)(b)".
Placing reliance on the above decision, the learned Counsel for the revision petitioner submitted that the Land Tribunal as well as the Appellate Authority have not considered the question as to whether there was valid surrender of tenancy right with reference to the above mandatory provisions of Section 5(3)(b) read with Rule 2-A of the Bombay Tenancy and Agricultural Lands Act, 1948 and they have not verified whether the application for surrender of tenancy rights was made in writing, whether it was verified by Mamlatdar and whether Mamlatdar satisfied himself that the tenant understood the nature and consequences of the surrender and that it was voluntary and whether Mamlatdar has endorsed his finding as to such satisfaction upon the application submitted for surrender. In the absence of proof of compliance with the said mandatory requirements of the Act, he contended that it is not possible to record a finding that there was a valid surrender of tenancy rights in respect of the land in dispute by the father of the revision petitioner in favour of the previous owner.
7. On carefully going through the impugned order passed by the Appellate Authority as well as the order passed by the Land Tribunal, I find that the said authorities have not examined the question relating to the validity of the surrender of tenancy rights with reference to the above mandatory requirements of the Act and they have not recorded their finding on the validity of the surrender of tenancy rights by examining all the above said questions. In this view of the matter, I find it necessary to remand the case to the Land Tribunal for fresh disposal in accordance with law by giving opportunity to both parties to adduce their evidence in the matter. In the light of the above conclusion reached, I do not find it necessary to receive the above said document produced by the respondent 3 by way of additional evidence since he can as well produce the said document before the Land Tribunal at the time of adducing further evidence.
8. Learned Counsel for the revision petitioner has also relied upon a decision of this Court in Smt. Kalauati alias Jayashree v State of Kar-nataka, in support of his contention that when once it is found that there is no valid surrender of tenancy rights by the tenant, he must be deemed to be continuing in possession of the tenanted lands. In the above decisions, it was held that:
"Grandfather of the tenant was cultivating the land since many years, prior to his death in 1962. Thereafter his name is not continued in the Cultivator's Column of the RTC. Question arose whether his granddaughter's claim that she is cultivating the land after the death of her grandfather and as such she is the tenant of the land can be accepted. High Court found on facts among other things that there was no surrender of tenancy rights at any time and hence the granddaughter of the original tenant continued to cultivate the land after the death of her grandfather as tenant".
He also relied upon another decision of this Court in Thunga Bat and Others v Vishalakhsi Heggadthi and Another, wherein it was held that:
"When plaintiffs predecessors were admittedly tenants in possession of the lands upto 1971 when the Act was in force, and there has been no surrender with permission of Court as required by Section 25 of the Act (which alone can be taken cognizance by Courts) there is a presumption that the possession continued with the tenant.
The possession of the lands in the eye of law remains with the tenants. The entry of the landlord of the lands being prohibited by Section 25(1) of the Act, each entry by the landlord would constitute an act of trespass and an invasion of the rights of the tenants. When the tenants have shown they have a legal right and that legal right is invaded by the act of the landlord, they are entitled to the relief of injunction".
Placing reliance upon the above decision, the learned Counsel for the revision petitioner submitted that notwithstanding the entries made in the RTC extract in favour of the present respondent 2 from 1972, and in favour of the previous owner of the land prior to 1972 from 1957, when once it is found that there is no valid surrender of tenancy rights by the father of the revision petitioner, the original tenant (father of the revision petitioner) must be deemed to be in possession of the land in dispute during his lifetime and after his death, the present revision petitioner must be deemed to be in possession of the said land and the presumptive value attached to the entries made in the RTC records stands rebutted.
9. In view of the above legal position, the vital question to be determined in the present proceeding is one relating to the validity of the surrender of tenancy rights by the father of the present revision petitioner in favour of the original owner and the question whether the revision petitioner is entitled to grant of occupancy rights in respect of the land in dispute depends upon the pronouncement on the above said question of validity of the surrender of tenancy rights by his father. In this view of the matter, I find it necessary to remand the case to the Land Tribunal to decide the matter afresh, particularly in respect of the question as to whether there was valid surrender of tenancy rights by the father of the present revision petitioner in favour of the original owner, by giving opportunity to both parties to adduce their further evidence.
10. In the result, this revision petition is allowed setting aside the impugned order passed by the Appellate Authority as well as the order passed by the Land Tribunal dated 28-9-1981 and the case is remanded to the Land Tribunal, Belgaum to decide the matter afresh by giving opportunity of both parties to adduce their further evidence.
Office shall transmit all the records to the said authority.
Land Tribunal, Belgaum shall issue notice to both parties for their appearance before proceeding with the enquiry.
Office shall immediately send a copy of this order to the Land Tribunal.