IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 30TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL No.2593 of 2012 (LR-SEC.48-A) BETWEEN:
G M BYRAPPA SON OF MAHADEVAPPA GANGOL SINCE DECEASED REPRESENTED BY HIS LEGAL REPRESENTATIVES, 1. SMT. GANGAMMA WIFE OF LATE G.M.BYRAPPAA AGE 68 YEARS, OCCUPATION HOUSEMAKER SINCE DEAD REPRESENTED BY APPELLANT Nos.2 TO 6 2. G.B.BASAVARAJAPPA SON OF LATE G.M.BYRAPPA AGE 42 YEARS OCCUPATION AGRICULTURE 3. G.B.RAVI KUMAR SON OF LATE G.M.BYRAPPA AGE 39 YEARS OCCUPATION AGRICULTURE 4. G.B.SUBASH SON OF LATE G.M.BYRAPPA AGE 32 YEARS OCCUPATION AGRICULTURE 5. G.B.MALLIKARJUNA SON OF LATE G.M.BYRAPPA AGE 28 YEARS OCCUPATION AGRICULTURE 6. RATHNAMMA WIFE OF CHANDRAPPA DAUGHTER OF LATE G.M.BYRAPPA AGE 44 YEARS OCCUPATION HOUSEMAKER ALL ARE RESIDENTS OF DANAVADI VILLAGE, HOLEHONNUR HOBLI, BHADRAVATHI TALUK, SHIMOGA DISTRICT.
PETITIONERS No. 1 & 3 TO 6 ARE REPRESENTED BY THEIR GENERAL POWER OF ATTORNEY HOLDER SRI. G.B.BASAVARAJU SON OF LATE G.M.BYRAPPA, AGE 42 YEARS RESIDENT OF DANAVADI VILLAGE HOLEHONNUR HOBLI BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT.
...APPELLANTS (BY SRI. D L JAGADEESH, SR.COUNSEL FOR D L J AND ASSOCIATES) AND CHINNAKKANA RAMAIAH SINCE DECEASED BY HIS LEGAL REPRESENTATIVES, 1. GANGADHARAPPA SON OF LATE CHINNAKKANA RAMAIAH SINCE DECEASED BY HIS LEGAL REPRESENTATIVES 1a. SRI. PARAMESHWARAPPA T.G. SON OF LATE GANGADHARAPPA 70 YEARS, AGRICULTURIST 1b. SRI. LOKESHAPPA T.G.
SON OF LATE GANGADHARAPPA AGE 68 YEARS, AGRICULTURIST 1c. CHANDRASEKHARAPPA.T.G. SON OF LATE GANGADHARAPPA AGE 65 YEARS, AGRICULTURIST THE RESPONDENTS 1 (a) TO 1 (c) ARE RESIDENTS OF DURGADHA STREET, TARIKERE TOWN, CHIKKAMAGALURU DISTRICT.
2. NAGARAJA SON OF LATE CHINNAKKANA RAMAIAH AGE 74 YEARS, AGRICULTURIST 3. KRISHNA MURTHY SON OF LATE CHINNAKKANA RAMAIAH 71 YEARS, AGRICULTURIST THE RESPONDENTS 2 AND 3 ARE RESIDENTS OF DURGADHA STREET, TARIKERE TOWN, CHIKKAMAGALURU DISTRICT.
4. JAYANNA, SINCE DECEASED BY HIS LEGAL REPRESENTATIVES, 4a. SMT. YASHODHA WIFE OF SHIVANNA DAUGHTER OF JAYANNA AGE 48 YEARS RESIDENT OF GARGA VILLAGE CHANNAGAIRI TALUK DAVANAGERE DISTRICT.
4b. SAKAMMA WIFE OF SADASHIVAPPA DAUGHTER OF LATE JAYANNA AGE 42 YEARS RESIDENT OF DANAVADI VILLAGE HOLEHONNUR HOBLI, BHADRAVATHI TALUK SHIVAMOGGA DISTRICT.
BOTH ARE REPRESENTED BY THROUGH GPA HOLDER BY D.P.CHANDRAPPA SON OF LATE MURUDAPPA AGE 77 YEARS OCCUPATION AGRICULTURIST RESIDENT OF DANAVADI VILLAGE HOLEHONNUR HOBLI, BHADRAVATHI TALUK SHIVAMOGGA DISTRICT.
5. STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY REVENUE DEPARTMENT, M.S.BUILDING, D.R.AMBEDKAR VEEDHI, BENGALURU-1.
6. THE LAND TRIBUNAL BHADRAVATHI TALUK BHADRAVATHI REPRESENTED BY ITS CHAIRMAN.
……RESPONDENTS (BY SRI. R1(a) AND R1(c) ARE SERVED AND UNREPRESENTED.
SRI. B G SRIRAM, ADVOCATE FOR R-2 SRI. UDAY K S FOR SRI. C M NAGABUSHANA, ADVOCATE FOR R4 (A AND B) SRI. LAKSHMINARAYAN, AGA FOR R-5 AND R-6) THIS WRIT APPEAL IS FILED U/S. 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No.34891/2009 (LR-SEC 48-A) DATED 10.04.2012.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 16.10.2019 COMING ON FOR PRONOUNCEMENT THIS DAY, ASHOK S. KINAGI J, DELIVERED THE FOLLOWING:
JUDGMENT The appellants had called in question the order dated 20.10.2009, passed by the Land Tribunal, Bhadravathi, in KLR MA No.2570/1974- 75, rejecting the application filed for grant of occupancy right, in Writ Petition No.34891 of 2009, before this court. The learned Single Judge dismissed the said writ petition on 10.04.2012. The writ petitioner being aggrieved by the said order, have filed the present writ appeal.
2. The brief facts of the case are as under: That one Late G.M.Byrappa, son of Mahadevappa Gangol, was in possession and cultivation of 5 acres 33 guntas of land in Sy.No.109 situated at Danavadi Village, Holehonnur Hobli, Bhadravathi Taluka as a tenant under one Chinnakkana Ramaiah. He was inducted into possession of the above said land as a tenant in the year 1965. Chinnakkana Ramaiah used to issue receipt for having received rent from Late G.M.Byrappa and he continued to be in possession and cultivation of the aforesaid land as a tenant from 1965 and continued to be so, as on 01.03.1974 and till his death. Originally, the land belonged to one Patel Murudappa. Patel Murudappa borrowed a sum of Rs.675/- as loan from one H.K.Nanne Sab, sometime in the year 1946-47. Since he could not discharge the said loan, he had mortgaged the aforesaid land in favour of Chinnakkana Ramaiah by means of a registered mortgage deed dated 18.04.1951, for an amount of Rs.2,000/- and delivered the possession of the said land. Patel Murudappa did not repay the loan to Chinnakkana Ramaiah. In the meantime, Patel Murudappa and his children joined together and sold the aforementioned land measuring 5 acres 33 guntas of land in Sy.No.109 to Chinnakkana Ramaiah, by means of a registered sale deed dated 20.05.1955, and it was also mentioned that the possession of the land was already with Chinnakkana Ramaiah by virtue of the mortgage deed dt. 18.04.1951. Since Patel Murudappa has failed to discharge the loan obtained from A.K.Nanne Sab, the said Nanne Sab filed a suit for recovery of money for Rs.675/-.
3. The suit in O.S.No.242 of 1948 filed by A.K.Nanne Sab against Patel Murudappa was decreed and as per the said decree, the aforesaid land was auctioned and sale certificate was issued to A.K.Nanne Sab on 20.12.1954, as per the court order. The said auction was subject to mortgage made in favour of Chinnakkana Ramaiah on 18.04.1951. It was submitted that there was collusion between the parties to the said suit to defraud the rights of G.M.Byrappa and Chinnakkana Ramaiah in respect of the said land.
4. One Sri. Jayanna, the eldest son of Patel Murudappa, on the basis of the alleged sale, initiated resumption proceedings before the Court of Munsiff, Bhadravathi in LR.Misc.No.135 of 1966 seeking an order for resumption of land in Sy.No.109 against Late G.M.Byrappa. Subsequently, the said petition stood transferred to the Land Tribunal, Shivamogga and re- numbered as LR.Misc.No.229 of 1967. After abolition of the Land Tribunal, the matter was transferred to Munsiff, Bhadravathi and again re- numbered as LR.Misc.No.32 of 1970. The learned Munsiff, Bhadravathi dismissed the suit filed by Jayanna. Said Jayanna, aggrieved by the said order, preferred an appeal before the Court of District Judge, Shivamogga in M.A.No.240 of 1971. When the said appeal was pending for consideration before the learned District Judge, the Karnataka Land Reforms (Amendment) Act, 1974 (‘the Amendment Act’ for short), came into force and by virtue of the amendment, the appeal pending before the learned District Judge, stood abated as per Annexure-D at Sl.No.32 vide order dated 30.03.1974, passed in Misc.Appeal No.95 of 1971.
5. That Late G.M.Byrappa, upon the commencement of the Amendment Act, filed an application under Form No.7 seeking conferment of the occupancy right in respect of the aforesaid land before the Land Tribunal, Bhadravathi. The Land Tribunal initiated proceedings on the said application in M.A.No.2570/1974-75. The Land Tribunal, after holding an enquiry and after appreciating the material placed on record, rejected the application filed by Late G.M.Byrappa. The appellant being aggrieved by the order of rejection of Form No.7, preferred a writ petition in W.P.No.34891 of 2009. The learned Single Judge, after considering the materials on record and the award passed by the Tribunal, dismissed the writ petition on 10.04.2012. The appellant being aggrieved by the said order passed in Writ Petition No.34891 of 2009, confirming the order dated 20.10.2009 passed by the Land Tribunal, Bhadravathi, in case No.KLR.MA.No.2570/1974-75, has filed the present appeal.
6. Heard arguments of learned counsels.
7. It is not in dispute that A.K.Nanne Sab has purchased the property in the year 1954 in the auction by virtue of a decree passed in O.S.242 of 1948, whereas Chinnakkana Ramaiah claims that he has purchased the property on 23.05.1955, from its previous owner Patel Murudappa and his children. Before Chinnakkana Ramaiah purchased the property, the said land was already sold in favour of A.K.Nanne Sab in the court auction and the registered sale certificate was issued to him on 10.10.1955. Subsequently, mutation entries were affected and revenue records were changed in the name of the purchaser. At no point of time, the name of Chinnakkana Ramaiah was entered in the revenue records. In the year 1965, G.M.Byrappa claimed to have been inducted as a tenant by Chinnakkana Ramaiah. That as on the date of alleged induction by Chinnakkana Ramaiah, he was not the absolute owner. As on the date of his purchase, the property was already transferred in the name of A.K.Nanne Sab. The said Chinnakkana Ramaiah was not having any right in the aforesaid land. Hence, the question of inducting G.M.Byrappa as a tenant in the aforesaid land, does not arise. By going through the records, neither the name of Chinnakkana Ramaiah nor G.M.Byrappa is appearing in the revenue records, at any point of time. That as per Section 4 of the Karnataka Land Reforms Act, any person who has sought for conferment of occupancy right, must be a lawful tenant. The burden of proving tenancy is on the person who asserts. In the instant case, the appellant has not placed any material to show that he was inducted in possession of the land by the true owner and there is also no material to show that he was in possession of the land. He has not produced any revenue records to show that his name was appearing in the Record of Rights in cultivator’s column. Tenancy postulates a relation between the owner of the land and the person in occupation of the land and there can be no tenancy without consent or authority of the owner to the occupation of that land. As observed above, the appellant has failed to prove that there was any such consent by the true owner. Chinnakkana Ramaiah was not the owner of the land and hence, the question of leasing the said land in favour of the appellant in the year 1964, does not arise. The appellant has failed to discharge the burden of proof placed on him.
8. That on perusal of Form No.11, it indicates that Jayanna was the owner of land and was in possession as on the appointed date ie., 01.03.1974. The appellant has not challenged the sale deed executed by A.K.Nanne Sab in favour of respondent No.2 and also entries in the revenue records standing in the name of respondent No.2. That as per Section 133 of the Karnataka Land Revenue Act, there is a presumption with regard to the entries in the Record of Rights. As per the entries in the Record of Rights, the name of respondent No.2 was shown in both Column Nos.9 and 12. The contention of the appellant cannot be accepted that he was a tenant and was in possession as on the appointed date ie., 01.03.1974, and the appellant has no right to contend that he was a tenant under Chinnakkana Ramaiah. The Tribunal, after examining the revenue records has come to a conclusion that there was no substance in the contention urged by the appellant that they were lawful tenants, duly inducted as such by Chinnakkana Ramaiah.
9. It is the contention of the learned counsel for the appellant that G.M.Byrappa had become a deemed tenant having inducted by mortgaging and in this regard, he has placed reliance on the judgment of the Apex Court in the case of DAHYA LALA AND OTHERS VS. RASUL MAHOMED ABDUL RAHIM AND OTHERS [AIR 1964 SC 1320]. The law laid down in the said judgment states that in case a mortgagee inducts a tenant into the land, then such a tenant is protected and he cannot be evicted upon redemption. In the present case, the appellant has failed to prove that he was inducted in possession of the aforesaid land by a mortgagee and further as could be seen from the revenue records, his name was not appearing in Column No.9 at any point of time. The said judgment is not applicable to the present case in hand.
10. The learned counsel has also placed reliance on 1980 (2) KLJ ITEM NO.14, WRIT APPEAL NO.415 OF 1980 IN EREGOWDA VS. STATE OF KARNATAKA, wherein it is held as under:
“If a person had been a tenant of the land even prior to his purchase of the land, the lease would be extinguished if such a purchase was valid, as there would be merger of the interest of the landlord and that of the tenant. If the sale was invalid for any reason, the purchaser’s right as a tenant, if any, would not be extinguished and it would continue to subsist, even if there was a valid sale in favour of another.
Where the tenant made a statement before the Tribunal that he had purchased the land and his application for occupancy was rejected, and it was subsequently held in a suit that the sale was not valid being affected by lis pendens, the dismissal of his application is liable to be re-opened.”
11. It is not the case of the petitioner for re- opening of application. In the said case, application was rejected on the ground that he had purchased the land. But in the present case, the Tribunal rejected Form No.7 on the ground that he has not produced any records to show that he is in possession of the property and no records have been produced to show that his name is appearing in the revenue records. The said judgment relied on by the appellant is not applicable to the instant case.
12. The Tribunal as well as the learned Single Judge, after considering the entire material on record, have held that the appellants have failed to establish that they were the lawful tenants of the property and cultivating the same as on the appointed dated. We do not find any illegality in the order passed by the land Tribunal and also in the order passed by the learned Single Judge. Hence, the writ appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE RD