IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF JULY, 2019 :PRESENT:
THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R.DEVDAS WRIT APPEAL NO.2182 OF 2006 (LR) BETWEEN SRI PILLAANJINAPPA, SINCE DECEASED BY HIS LRS 1. SMT ANJANAMMA W/O LATE PILLAANJINAPPA SINCE DECEASED BY HER LRS 1(a) SMT CHALLAKKAMMA W/O LATE DODDAHANUMANTHAPPA D/O LATE ANJANAMMA AGED ABOUT 80 YEARS R/O KALKERE VILLAGE HORAMAVU POST, K R PURAM HOBLI BANGALORE – 560 043 SMT SHARADAMMA D/O SMT ANJANAMMA W/O B C MUDDAPPA SINCE DECEASED BY HER LRS 1(b) SMT SAVITHRAMMA D/O SMT SHARADAMMA AGED ABOUT 58 YEARS 1(c) SRI CHANNAKESHAVA S/O SMT SHARADAMMA AGED MAJOR 1(d) SMT KASTURI D/O SMT SHARADAMMA AGED MAJOR 1(e) SMT KOMALAMMA D/O SMT.SHARADAMMA AGED MAJOR 1(f) SRI GOVARDHANA S/O SMT SHARADAMMA AGED MAJOR 1(g) SMT. JALAJAKSHI D/O SMT SHARADAMMA AGED MAJOR 1(h) SRI CHAMPAKADHAMA S/O SMT SHARADAMMA AGED MAJOR 1(i) SRI SUNDARESH S/O SMT SHARADAMMA AGED MAJOR (ALL ARE RESIDENTS OF BELLESHIVALE VILLAGE SHIVARAMAKARANTHNAGAR POST BIDARAHALLI HOBLI BANGALORE EAST TALUK BANGALORE – 560 077 SMT MUNIYAMMA D/O SMT ANJANAMMA W/O LATE B C KEMPAIAH (SINCE DECEASED BY HER LRS) 1(k) SMT KAMALAMMA D/O SMT MUNIYAMMA AGED MAJOR SRI MANJUNATH B K S/O SMT MUNIYAMMA (SINCE DECEASED BY HIS LRS) 1(1) SMT SHASHIKALA W/O MANJUNATH B K AGED ABOUT 38 YEARS, 1(m) TEJAS S/O MANJUNATH B K AGED ABOUT 12 YEARS (SINCE MINOR REPRESENTED BY HIS MOTHER SMT. SHASHIKALA) 1(n) SRI SHIVAPPA B K S/O SMT MUNIYAMMA AGED MAJOR 1(p) SMT VEDAVATI B K D/O SMT MUNIYAMMA AGED MAJOR 1(q) SRI RAGHAVENDRA B K S/O SMT MUNIYAMMA AGED MAJOR 1(r) SMT AMBUJA B K D/O SMT MUNIYAMMA AGED MAJOR 1(s) SRI DHANANJAYA B K S/O SMT MUNIYAMMA AGED MAJOR (ALL ARE R/O SMRK-LG LAKE VIEW LAYOUT BELLESHIVALE VILLAGE SHIVARAMAKARANTHANAGAR POST BIDARAHALLI HOBLI BANGALORE EAST TALUK BANGALORE – 560 0077 2. SRI K.P.KALAPPA S/O LATE PILLAANJINAPPA AGED ABOUT 69 YEARS 3. SRI K.P.MUDDAPPA S/O LATE PILLAANJINAPPA SINCE DECEASED BY HIS LRS 3(a) H.GOWRAMMA W/O LATE SRI K.P. MUDDAPPA AGED ABOUT 57 YEARS 3(b) M.ANURADHA D/O LATE SRI K.P. MUDDAPPA AGED ABOUT 32 YEARS BOTH ARE RESIDENTS OF KALKERE VILLAGE K.R.PURAM HOBLI, HORAMAVU POST BENGALURU EAST TALUK BENGALURU - 560043.
... APPELLANTS (BY SRI G.V.CHANDRASHEKAR, SRI K.M.MUDDAPPA AND SRI AJAY KUMAR M, ADVOCATES) AND:
1. THE STATE OF KARNATAKA REVENUE DEPARTMENT M.S.BUILDING VIDHANA VEEDHI BANGALORE 560 001 REPRESENTED BY ITS PRINCIPAL SECRETARY 2. THE LAND TRIBUNAL THAN BANGALORE SOUTH TALUK NOW BANGALORE EAST TALUK BANGALORE BY THE TAHSILDAR BANGALORE EAST TALUK THE SECRETARY SMT RAMAKKA W/O PATEL HANUMANTHAIAH SINCE DECEASED BY HER LR’S SMT ANJANAMMA W/O LATE K MADAPPA SINCE DECEASED BY HER LR’S 3. SRI M. REVANNA S/O LATE K. MADAPPA MAJOR 4. SRI M. BASAVARAJU S/O LATE K. MADAPPA MAJOR 5. SRI M. PUTTASWAMY S/O LATE K. MADAPPA MAJOR ALL ARE RESIDING AT KALKERE VILLAGE HORAMAVU POST, K.R.PURAM HOBLI BANGALORE EAST TALUK BANGALORE – 560 043 6. SMT MUNIYAMMA W/O LATE DODDAKAVERAPPA MAJOR, RESIDING AT K. CHANNASANDRA VILLAGE HORAMAVU POST, K.R.PURAM HOBLI, BANGALORE EAST TALUK BANGALORE – 560 043 ... RESPONDENTS (BY SRI V.SREENIDHI, AGA FOR R-1 & R-2, SRI VIJAYSHANKAR, SR.COUNSEL A/W SRI CHANDRASHEKAR, ADV. FOR R3, 4 & 5, SRI V.JAVAHAR BABU, ADV. FOR R-6) THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.16853/1999 DATED 14/11/2006 AND ETC.,
PRONOUNCEMENT OF ORDERS, THIS DAY, DEVDAS J., DELIVERED THE FOLLOWING:
JUDGMENT The appellants were the petitioners before the learned Single Judge with a prayer to quash the order dated 10.02.1999 passed by the Land Tribunal, Bengaluru South Taluk. The writ petition having been dismissed, the appellants are before this Court assailing the order of the learned Single Judge.
2. To understand the background in which a declaration in Form No.7, under the provisions of Karnataka Land Reforms Act was filed by Sri Pillaanjinappa (the original writ petitioner, since deceased) and the objections raised by Smt. Ramakka (original respondent No.3, since deceased), a brief facts of the case are required to be narrated.
3. According to the appellants, land bearing Sy.No.78/2, measuring 2 acres 37 guntas, situated at Horamavu Village, Bengaluru South Taluk belonged to one Pillappa, s/o Muniyappa. The said Pillappa, along with his wife Bayyamma mortgaged the lands in favour of Kadugondanahalli Krishnappa by executing a Mortgage Deed dated 06.12.1929. Pillappa and Bayyamma had no issues. It is the contentions of the appellant Pillaanjinappa that he was a tenant under Pillappa. Since there was interference by Smt.Ramakka and her husband, Pillaanjinappa filed a suit in O.S.No.627/1973, seeking permanent injunction restraining the defendants from interfering in the peaceful possession of the land in question. In the suit, it was contended by Smt. Ramakka that she purchased the property from Muniyappa, the grand son of Pillappa, vide registered Sale Deed dated 01.09.1970. The City Civil Court, which was ceased of the matter, framed an additional issue No.1(a) as to whether the plaintiff proves that he is a tenant of the suit land?. Having framed the additional issue, by order dated 31.08.1974, the Civil Court referred the matter to the Land Tribunal, in view of the bar under the Karnataka Land Reforms Act, where a question of tenancy could only be answered by the Land Tribunal. The further proceedings in the suit were also stayed. However, by order dated 20.04.1991, the order of reference was recalled and the case was posted for evidence of plaintiff. Further, since the plaintiff did not appear, the suit was dismissed by order dated 19.06.1991.
4. It was contended by Pillaanjinappa, before the Land Tribunal that he was a tenant under the landlord Sri Pillappa even before the appointed day and the landlord died issueless. Per contra, Smt. Ramakka contested the proceedings on the ground that she had purchased the property under a valid sale deed. It was also alleged that Pillaanjinappa was her brother-in-law, being the brother of her husband Patel Hanumanthaiah. Smt.Ramakka further contended that Pillaanjinappa, taking advantage of the close relationship and the death of her husband, forcibly started cultivating the land and he did not share the benefit derived out of the lands. It was specifically denied that Pillaanjinappa was ever a tenant under Smt. Ramakka or her husband.
5. The Land Tribunal, by order dated 21.11.1980, held that though Pillaanjinappa was in possession of the land, he failed to produce any material to evidence the fact that he was paying rents and moreover, since the relationship was admitted, the contention of tenancy was rejected. Consequently, the declaration sought by Pillaanjinappa was rejected. However, W.P.No.22136/1981, filed by Pillaanjinappa was allowed, while quashing the order passed by the Land Tribunal, matter was remanded for fresh consideration.
6. On re-consideration, the Land Tribunal granted occupancy rights to Pillaanjinappa, by order dated 10.02.1999. W.P.No.16853/1999, filed by Smt. Ramakka was allowed by order dated 14.11.2006 and this appeal is preferred by Pillaanjinappa. During the course of the writ proceedings, Smt. Ramakka passed away and the legal representatives were brought on record. Similarly, during this appeal proceedings, Pillaanjinappa passed away and his legal representatives were brought on record.
7. Learned counsel for the appellants has raised the following grounds:
(i) the learned Single Judge erred in erroneously concluding that Smt. Ramakka and her husband Patel Hanumanthaiah discharged the mortgage created by the original landlord Pillappa and his wife Bayyamma in the year 1938 and thereafter Smt.Ramakka and Patel Hanumanthaiah continued in possession. Further, the learned Single Judge was not right in holding that Smt. Ramakka was in possession of the land under a valid registered sale deed dated 01.09.1970.
(ii) The learned Single Judge erred in not noticing that after a partition in the family, the relationship between Pillaanjinappa and his brother Patel Hanumanthaiah was severed and there was no bar for Pillaanjinappa to seek occupancy rights on the strength of his being a tenant under Pillappa.
(iii) The fact finding authority had rightly given a finding on the basis of the material placed before the Land Tribunal that the entry of Pillaanjinappa’s name in the revenue records and the admission made by Smt Ramakka clearly proved that Pillaanjinappa was in possession of the land.
8. The learned counsel for the appellants has raised a new ground that under Section 4 of the Act, Pillaanjinappa is a ‘deemed tenant’. The learned counsel, while drawing the attention of this Court to the definition of ‘joint family’ in Section 2(17) would contend that Pillaanjinappa was in lawful cultivation and if Smt.Ramakka contended that Pillaanjinappa is a family member, she was required to make an application to the Tribunal within one year from the appointed day and the deeming provision will not apply only if the Tribunal declared that such a person is not a tenant. It is therefore submitted that, Smt.Ramakka, having not filed an application seeking a declaration, as provided under Section 4 of the Act, Pillaanjinappa should be declared as a ‘deemed tenant’.
9. In this regard, the learned counsel for the appellants places reliance on a decision of the Hon’ble Supreme Court in the case of Honnamma and others /vs./Nanjundaiah, since dead by his LRs. and others, reported in (2008) 12 SCC 338. It is submitted that all that is required for the person to claim the status of the deemed tenant is that the possession must be lawful, but there is nothing which would necessitate the payment of rent as a condition precedent for the creation of a deemed tenancy.
10. Per contra, Sri Vijay Shankar, learned Senior Counsel draws the attention of this Court to paragraph 13 of the impugned order dated 10.02.1999, passed by the Land Tribunal. It is pointed out that the Land Tribunal, on remand, gave a finding that Pillaanjinappa never claimed ownership of the land; he never claimed to be a tenant under Smt.Ramakka; he never claimed that he was a coolie, working for wages. Therefore, it was concluded by the Tribunal that under Section 4 of the Act, Pillaanjinappa is a deemed tenant since he remained in possession as per the entry in the revenue records right from 1966-67 and continued to be in possession on the appointed day i.e., 01.03.1974. The learned Senior Counsel submits that even according to the decision in Honnamma (supra), the question that was required to be considered is whether Pillaanjinappa was in ‘lawful’ possession?
11. The learned Senior Counsel further draws the attention of this Court to the definition of the word ‘tenancy’, as defined in Section 2(33) of the Act. By placing reliance on a decision of the Apex Court in the case of K.V.Muthu /vs./ Angamuthu Ammal reported in (1997) 2 SCC 53, it is submitted that the definition of ‘joint family’ as provided in Section 2(17) of the Act cannot and will not include a brother-in-law, into the Hindu Undivided Family. Therefore, the contention of the learned counsel for the petitioner that Smt.
Ramakka should have filed an application under the proviso to Section 4 of the Act seeking declaration that Pillaanjinappa is not a tenant under Smt.Ramakka, cannot be sustained.
12. The learned Senior Counsel further relies upon a decision of a co-ordinate bench in the case of A.G.Lakshminarayana /vs./ State of Karnataka, By its Secretary, Department of Revenue and Others, reported in ILR 2002 KAR 62. It is submitted that the ingredients required to declare a person as ‘deemed tenant’ has been elaborately dealt with in the said decision. In the light of the said decision, it is submitted that the Land Tribunal erred in declaring Pillaanjinappa as a ‘deemed tenant’ and the learned Single Judge rightly set aside such a declaration.
13. On facts, it was pointed out from the material on record that the name of Pillaanjinappa was entered in the record of rights as ‘owner’. Attention was drawn to the averments made in the plaint in O.S.No.627/1973, filed by Pillaanjinappa, to point out that Pillaanjinappa claimed that he was the owner of the property. Therefore, the question of declaring Pillaanjinappa as a tenant was uncalled for.
14. Heard the learned counsel for the appellants and Sri Vijayshankar, learned Senior Counsel for the private respondents.
15. What is noticeable is that the learned Single Judge has in fact upheld the contention of the respondents herein, who were also respondents before the learned Single Judge, while placing reliance on a decision of a co-ordinate bench in the case of Paramashivaiah and others /vs./ the State of Karnataka and others, reported in ILR 2000 KAR 4830, wherein it was held that, “Even the ‘deemed tenant’ would also be required to pay the rent. Where the occupation is forcible and no rent is being paid, then such a person cannot be held to be in lawful possession of the land belonging to another person.”
The said position of law is also reiterated by another co- ordinate bench in the case of A.G.Lakshminarayana (supra). His Lordship Justice R.V.Raveendran, as he then was a judge of this Court, elaborated on the ingredients of Section 4 of the Act, as follows:
“A close reading of Section 4 of the Act makes it clear that a person can be deemed to be a tenant only if the following conditions are fulfilled:
(a) He should have been lawfully cultivating the land belonging to another (owner).
(b) The land should not be under the personal cultivation of the owner.
(c) He should not be a member of the owner’s family nor a servant or hired labourer under the owner nor a mortgagee in possession.”
While further elaborating on the requirement of filing an application within one year from the appointed day, it was held as follows:
“22.2) Section 4 provides that a person, though not holding any tenancy right can be deemed to be a tenant, if he had been lawfully cultivating the land belonging to another. Thus, the condition precedent for third respondent to claim that he was a deemed tenant, was that he should have been ‘lawfully cultivating the lands’ belonging to Appellant. The proviso enables the owner to file an application within one year from the appointed day (2.10.1965) for a declaration that such person is not a tenant. It is significant that the words “within one year from the appointed day” was not amended as “within one year from the date of commencement of the Amendment Act” when other provisions were exhaustively amended by Act 1/1974 with effect from 1.3.1974. A combined reading of the main section and the proviso to Section 4 would show that a person lawfully cultivating the land of another can be deemed to be a-tenant only if he was so cultivating the land as on 2.10.1965 when the Act came into force and continued to cultivate the land for a period of year there from. For example, if a person started cultivating the land of another only in 1967 or 1968 or 1970, obviously the question of his being deemed as a tenant under Section 4 does not arise, as the owner could not have made an application for a declaration that such person was not a tenant, within one year from 2.10.1965. The scheme of the Act and the object of the Act and the wording of Section 4 makes it clear there cannot be deemed “tenancy” unless it is established that the person claiming to be a deemed tenant was lawfully cultivating the land of another between 2.10.1965 to 2.10.1966.”
Further, while dealing with the term ‘lawfully cultivating’ as provided in Section 4, it was held as follows:
“25. The term ‘lawful’ means warranted or authorised by law or having the qualification prescribed by law or not contrary to or forbidden by law. In Black's Judicial Dictionary, while defining the term ‘lawful’, the distinction between the term ‘lawful’ and ‘legal’, has been highlighted. It is pointed out that the term ‘lawful’ contemplates substance of law whereas the term ‘legal’ contemplates the form of law. An act is “lawful” if it is authorised or sanctioned or at any rate not forbidden by law. On the other hand, an act is ‘legal’, if it is done or performed in accordance with the forms and usages of law or in a technical manner and the word ‘lawful’ more clearly implies an ethical content than does ‘legal’. An illustration of a contract or will executed without the required formalities is given. Such a contract or will might be said to be invalid or illegal or not legal, but could not be described as unlawful. We may now refer to some decisions which have considered what is ‘lawful’ in the context of Section 4 of the Act.”
16. As rightly contended by the learned Senior Counsel for the private respondents, Pillaanjinappa contested the claim of Smt. Ramakka being the owner of the land in question, having purchased the same under a registered sale deed. Pillaanjinappa claimed that he was a tenant under Pillappa and in fact claimed that Pillaanjinappa and his wife Bayyamma died issueless. The fact that Muniyappa, the grand son of Pillappa sold the property in favour of Smt. Ramakka under the registered sale deed dated 01.09.1970, remained uncontraverted. In the opinion of this Court, the Land Tribunal, having noticed that Pillaanjinappa denied the title of Smt. Ramakka and denied having been a tenant under Smt. Ramakka or a coolie under Smt. Ramakka, could not have declared Pillaanjinappa as a deemed tenant. The most important ingredient for securing a declaration as deemed tenant is ‘lawful cultivation’. Pillaanjinappa never claimed tenancy under Smt.Ramakka. Therefore, the Tribunal clearly erred in declaring Pillaanjinappa as a deemed tenant.
17. In fact the decision of the Hon’ble Supreme Court in the case of Honnamma (supra), relied upon by the learned counsel for the appellants would also uphold this view. It was held therein that all that is required for a person to claim the status of a deemed tenant is that the possession must be ‘lawful’. In the light of the said decision, the observations of the learned Single Judge in paragraph 20 and the finding of the Tribunal that Pillaanjinappa failed to establish that he was paying rent on ‘wara’ basis to the landlord or any lease deed to show that he was cultivating the land as tenant, is of no consequence.
18. In the light of the above, we proceed to dismiss the appeal, as one without merit.
SD/- JUDGE SD/- JUDGE KLY/