IN THE HIGH COURT OF KARNATAKA AT BANGALORE PRESENT THE HON BLE MR. JUSTICE N.KUMAR AND THE HON BLE MR.JUSTICE B.V.PINTO

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE BETWEEN DATED THIS THE 28 TH DAY OF NOVEMBER, 2012 PRESENT THE HON BLE MR. JUSTICE N.KUMAR AND THE HON BLE MR.JUSTICE B.V.PINTO Writ Appeal No.597 of 2008 (LR) SHARAF MANJUNATHA RAO SINCE DECEASED BY LRS 1. S M NAGARAJA 53 YEARS 2. S M VASANTHAKUMAR 51 YEARS 3. S M SRINIVASA 49 YEARS 4. S M KESHAVA MURTHY 47 YEARS 5. S M ARAVIND 44 YEARS 1 TO 5 ARE S/O LATE SHARAF MANJUNATHA RAO, R/O SHARAF BALAKRISHNA RAO LANE ASHOKA ROAD, SHIMOGA... APPELLANTS (By Sri. ASHOK HARANAHALLI. SR.COUNSEL FOR Sri. S V PRAKASH, ADV.)

2 2 AND 1. NAGAMMA S/O LATE R MAHARAJ 64 YEARS R/O ASHOK ROAD SHIMOGA CITY 2. SHARAF KRISHNAMURTHY SINCE DECEASED BY LRS 2.(a) S K SUBRAMANYA RAO S/O SHARAF KRISHNA MURTHY R/O SHARAVATHINAGAR SHIMOGA (b) S K RAMESH RAO S/O SHARAF KRISHNA MURTHY SINCE DECEASED BY LRS b(1) SMT H RAMADEVI W/O S K RAMESH RAO KRISHNA, BEHIND BISHOP COTTON SCHOOL, 2 ND MAIN, 4 TH CROSS ASHOK NAGAR, SHIMOGA b(2) S R RAGHUNANDAN S/O LATE S K RAMESH RAO KRISHNA, BEHIND BISHOP COTTON SCHOOL 2 ND MAIN, 4 TH CROSS ASHOK NAGAR SHIMOGA 3. STATE OF KARNATAKA BY ITS SECRETARY REVENUE DEPARTMENT M S BUILDNG BANGALORE 4. THE LAND TRIBUNAL SHIMOGA TALUK REPRESENTED BY ITS SECRTARY... RESPONDENTS

3 3 (By Sri.B RUDRAGOWDA, ADV.FOR R1 Sri.K.KRISHNA, AGA. FOR R3 AND R4. R2 (A), R2 (B) (I) AND R2(B) (II) - SERVED) 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.44848/2002 DATED 27/02/2008. THIS WRIT APPEAL IS COMING ON FOR FINAL HEARING THIS DAY, N. KUMAR J., DELIVERED THE FOLLOWING:- JUDGMENT This appeal is preferred by the landlords challenging the order passed by the learned Single Judge, who has directed the Land Tribunal to grant the occupancy rights in favour of the petitioner in the writ petition to the extent of the land, which has been challenged by respondent No.4 and others excluding the share of respondent No.3 of which the ownership is already available to the tenant by virtue of the sale deed, to the extent the Civil Court has not interfered. 2. For convenience, parties are referred to as they are referred to in the writ petition.

4 4 3. The subject matter of this proceedings is the land bearing survey No.104 (renumbered as survey No.330) situated at Uragadur Village, Shimoga district, measuring 10 acres and 37 guntas. The case of the petitioner is that the said land belongs to Sharaf Krishna Murthy. However the land was in unauthorized occupation of Smt.Siddamma. The petitioner s husband - the deceased Maharaja entered the possession of the property on by paying consideration to Siddamma. He was cultivating the land. He was paying Vaara to the said Sharaf Krishna Murthy. On , he purchased the entire extent of land under a registered sale deed for valuable consideration. Thereafter, the respondent No.4 Manjunath Rao and his two brothers S.Subba Rao and S.R.R.Nagabhushana Rao, son of Rama Rao filed a suit in O.S.No.5/1972 against Sharaf Krishna Murthy and others for partition and separate possession of their 5/8 th share in the aforesaid property. The said deceased Maharaja was impleaded as 7 th defendant in the said suit. In fact,

5 5 during the pendency of the said suit, the Maharaja died on The petitioner Nagamma was brought on record as his legal representative along with her daughters and sons. After contesting the suit, it came to be decreed. Aggrieved by the said judgment and decree passed by the trial Court on , the petitioners preferred an appeal in R.A.No.11/1974, which came to be dismissed on Aggrieved by the judgment, she preferred RSA No.768/1977, which also came to be dismissed at the stage of admission on Thus judgment and decree passed by the trial Court declaring that the plaintiff is entitled to a share of 5/8 th in the aforesaid property attained finality. 4. During the pendency of the Second Appeal before this court, on , Smt. Nagamma, filed an application in Form No.7 under Section 48A of the Karnataka Land Reforms Act, 1964 seeking occupancy rights in respect of the entire extent of land. She stated

6 6 that the rent was 5 pallas of paddy per acre and the rent receipts were also issued by Sharaf Krishna Murthy. After filing the said application, she requested the Court not to proceed with the final decree proceedings and execute the decree. Her request was granted and the proceedings was stayed. 5. In form No.7 filed for granting of occupancy rights, she showed Sharaf Krishna Murthy and Manjunath Rao as the land owners. The notice was duly served on them. After enquiry, the Land Tribunal held that she has established her case of tenancy and therefore, it granted occupancy rights in her favour. Aggrieved by the said order of the Land Tribunal, Manjunath Rao and C.Subba Rao preferred a writ petition before this Court in W.P.No.20000/1982. By an order dated , the writ petition was allowed. The order of the Land Reforms Tribunal was set aside and the matter was remanded back to the Land Tribunal for fresh consideration and in accordance

7 7 with law. After such remand, the Tribunal conducted an enquiry. The Land Tribunal considered the material on record and passed an order on , granting the occupancy rights in favour of the petitioner herein. Aggrieved by the order of the Land Reforms Tribunal, again Manjunath Rao and Subba Rao preferred an appeal in LRA No.37/1989. However, with the abolition of the Appellate Forum, the matter was transferred to this Court and re-numbered as W.P.No.25179/1992. After hearing both the parties, this Court set aside the order of the Land Tribunal granting occupancy rights and remanded the matter back to the Tribunal for fresh consideration. After such remand, an enquiry was conducted. This time the Tribunal held that the names of the son of Manjunath, Krishna Murthy and Subba Rao was entered in the year They have also been granted the said land under the Inams Abolition Act, 1955 under Section 9 of the said Act. Though from the year , the name of R.Maharaja is entered in the RTC, there is an endorsement to the effect that it is

8 8 written after striking of the entries. Further when the Maharaja purchased the said property under a registered sale deed dated , he was in possession of the said property as the owner. As on the appointed date i.e. on , the land was not a tenanted land at all and owner cannot maintain any application under Form No.7. Hence, the claim for tenancy was rejected. Aggrieved by the said order, the petitioner preferred the writ petition before this Court. The learned Single Judge was of the view that prior to , petitioner was cultivating the land as a tenant. He had purchased the entire property under the registered sale deed. The learned Single Judge held that the said sale deed is not binding on the son of Manjunath Rao and his brothers who are not the parties to the sale deed. Therefore, the sale stands vitiated. Once the sale stands vitiated, the tenancy rights which had merged with the ownership gets revived and therefore, he directed the Land Tribunal to grant occupancy rights, excluding the share purchased

9 9 by the petitioner belonging to Sharaf Krishna Murthy. Aggrieved by the said order, the present appeal is filed. 6. Sri Ashok Haranahalli, learned Senior Counsel appearing for the appellants contended that the learned Single Judge failed to notice that it is not a case of the sale deed being set aside by a court decree, which results in reviving the rights of the purchaser if any, anterior to the execution of the sale deed. The case pleaded is Maharaja was a tenant under Sharaf Krishna Murthy and Sharaf Krishna Murthy sold the property in its entirety which belongs to his brothers. Therefore, the brothers are entitled for partition and separate possession and contended that such sale is not binding on them. It is not a case of setting aside the sale deed and therefore, when the tenancy is pleaded under Sharaf Krishna Murthy and the sale deed is executed, if the sale deed is not set aside the revival of the tenancy would not arise. In such circumstances, there is no relationship of the landlord. This aspect has been

10 10 completely missed by the learned single Judge, while passing the orders and hence, the said orders requires to be set aside. 7. Per contra, the learned Counsel appearing for the writ petitioner Nagamma, Sri Rudregowda contends that in the sale deed executed by Sharaf Krishna Murthy, there is a categorical recital that the Maharaja was tenant under him. Secondly, it is admitted by Sharaf Krishna Murthy in the original suit that Maharaja was giving him a share of crop, therefore, it is not in dispute that Maharaja was a tenant in respect of the land in question under Sharaf Krishna Murthy. Even in the absence of any lease deed or other proof, as he was lawfully cultivating the said land belonging to the Sharaf Krishna Murthy, he is deemed to be a tenant under Section 4 of the Karnataka Land Reforms Act. Even though the land in question is Inam land it does not come in the way of exercising jurisdiction under the Land Reforms Act in favour of

11 11 Maharaja. However, the Tribunal committed a serious error in dismissing the claim petition on the ground that there is no relationship of landlord and tenant as he had become the owner of the property. When such sale deed is held illegal, the tenancy rights get revived which fact was noticed by the learned single Judge and interference by this Court is uncalled for. 8. Learned Counsel for the respondents relied on the unreported judgment in the case of T.S.Eregowda Vs. The State of Karnataka, disposed of on , where it has been held that the lease would be extinguished if such purchase is valid, as there would be a merger of the interest of the landlord and that of the tenant. If the sale in his favour was invalid for any reason, his right as a tenant, if any, would not be extinguished, but would continue to subsist. 9. Again in the case of Muniyallappa Vs. B.M.Krishnamurthy and others reported in AIR

12 SC 212, it is held if a tenant claims that he is a deemed tenant as provided under Section 4 of Land Reforms Act, the requirement of deemed tenancy must be determined by the Land Tribunal. 10. From the aforesaid facts and rival contentions, it is not in dispute that the land in survey No.104 (renumbered as survey No.330), situated at Uragadur village, Shimoga Taluk, originally was a Inam land. At an undisputed point of time in the suit filed for partition, written statement is filed by respondent No.7 setting out his claim, the Maharaja the husband of the petitioner. In the written statement in O.S.No.5/1972 filed, it is stated as under:- The suit land was under unauthorized cultivation of one Dasappa for a long time. On , this defendant took possession of the said land from - Siddamma and his son Manjappa, who are the legal representatives of the deceased Dasanna, by paying Rs.3,000/- as consideration and since, then this defendant began to enjoy the Land as his own. After few months, first defendant contacted this defendant and claimed that the said land belongs to him. To avoid litigation there was a settlement

13 13 between first defendant and this defendant and this defendant began to pay five pallas of paddy per year to the first defendant and became the tenant of the first defendant of the suit land. This defendant has spent more than Rs.5,000/- to bring the land under full cultivation. On , this defendant purchased the suit land from the first defendant for Rs.11,000/- and since then, is in possession and enjoyment of the suit land. 11. Therefore, initially Maharaja entered into the land without the permission of the owner, he dispossessed the persons from possession by paying consideration. It is thereafter, according to him there was an agreement between Sharaf Krishna Murthy and him and a tenancy was created. On , by virtue of the fact that he purchased the land from Sharaf Krishna Murthy, the tenancy came to an end and became absolute owner. From the aforesaid material, it is clear that the land in question being an Inam land with the passing of the Inam Abolition Act, the said land vested with the Government in the year After 1958, neither the Inamdar nor the tenant was cultivating as on the date of vesting and they lost

14 14 their right. However, they were given a right to file an application for re-grant. Siddamma filed an application for re-grant as a tenant. The said application was contested by Sharaf Krishna Murthy and brothers. The Special Deputy Commissioner of Inams Abolition, by an order dated , held that the applicant Siddamma has not produced any documents or satisfactory evidence in support of her claim of long standing tenancy rights. She has also not presented herself for enquiry. More than the fact that the respondent also, technically speaking, is not the Inamdar and the applicants claim has no basis. In fact, the applicants claim for occupancy rights under Section 3(13) was rejected and ordered the occupancy rights in the name of the respondent under Section 9 of the Inams Abolition Act, The respondents in the said proceedings are Sharaf Krishna Murthy, Sri Manjunath Rao and Sri Subba Rao. Thus by virtue of the said order, those three brothers became entitled to the said land under Section 9 of the Inams Abolition Act and

15 15 each one of them were entitled to 1/3 rd share. Thus Sharaf Krishna Murthy was not the absolute owner of the land in question. Maharaja entered on the land only on , therefore, he was not a tenant of the Inam land and therefore, no right vests under Inams Abolition Act. On the date he entered into the possession of the land in the year 1964 and immediately thereafter, when he agreed to pay the rent to Sharaf Krishna Murthy, the said land was vested with the Government and Sharaf Krishna Murthy nor his brothers were the owners of the land in question. They had no right to create a tenancy in respect of the land which did not belong to them. Maharaja entered into the land by dispossessing Siddamma and her son from cultivation of the land by paying Rs.3,000/-. Being aggrieved, Sharaf Krishna Murthy claimed ownership and in the eye of law, it has no value and no tenancy is created, because there cannot be a tenancy between Maharaja and Sharaf Krishna Murthy, in respect of the land which belongs to the State. It was contended that

16 16 on , he purchased the land but the land had been granted on and therefore, he acquired title to the property. As is clear from the aforesaid grant order, the grant was not in favour of Sharaf Krishna Murthy exclusively he was only entitled to 1/3 rd share and the remaining 2/3 rd belongs to his brothers. Therefore, the Maharaja acquired the title only in respect of the share of Sharaf Krishna Murthy. It is because of that, a suit was filed by others for partition and separate possession of their share in the property and for a declaration that the aforesaid sale deed is not binding on them to the extent of their share. The said suit was decreed on On account of the death of Maharaja on , who was arrayed as respondent No.7 in the said suit, his wife - Nagamma was brought on record as legal representative. It is she who contested the suit. After the decree, she filed an appeal in R.A.No.11/1974 which came to be dismissed on Thereafter, she filed second appeal in R.S.A.No.768/1977. It is during the pendency of the

17 17 second appeal, she filed form No.7 claiming occupancy rights to the entire extent of land as on against all the three brothers. It is not the case of the petitioner that Maharaja took this land on lease from the brother of Sharaf Krishna Murthy. Therefore, there is no lease between the brothers and the Maharaja. 12. An alternative argument is canvassed saying that as the Maharaja was cultivating the land to the full extent, he is deemed as the tenant under Section 4 of the Land Reforms Act. Section 4 of the Land Reforms Act reads as under:- 4. Persons to be deemed tenants:- A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not a. a member of the owner s family, b. a servant or a hired labourer on wages payable in cash or kind but not in crop share cultivating the land under the personal supervision of the owner or any member of the owner s family, or c. a mortgagee in possession.

18 18 To attract Section 4, the condition precedent is person claiming to be a deemed tenant should be lawfully cultivating the land and the said land should belong to another person. On , Maharaja entered the land but he has not obtained the permission from the owner, which was the State. It is the specific case that by paying Rs.3,000/- to the person who was on the land, he took possession and therefore, he has not taken possession from a person to whom the land belongs. After such purchase, it is the specific case that he entered into a lease agreement with Sharaf Krishna Murthy and paying a share in the crop. Sharaf Krishna Murthy was not the owner of the land on the said date. Therefore, Section 4 is not attracted. This land was granted on in favour of all the brothers and hence, Sharaf Krishna Murthy is not the absolute owner. The land belongs to all the brothers and it was not a joint family property. Sharaf Krishna Murthy, though he is an elder brother, insofar as this land is concerned, he was not a manager or kartha of the

19 19 family. His right in the said land is only to the extent of 1/3 rd share. It is nobody s case that he entered into any agreement with the Maharaja. Similarly, it is not the case of the petitioner that they approached the other coowners and taken the land on lease or that they are lawfully cultivating their portion also with their permission. 13. In the light of the aforesaid material on record, it cannot be said that the Maharaja was in lawful possession of the land belonging to the person in whose favour the order of grant was made when he entered the land on This aspect has been completely missed by the learned Single Judge. Under the provisions of the Land Reforms Act, if a land is granted under the Inam Abolition Act, after such a re-grant the tenancy could be created between the grantee and tenant and if that tenancy exists and subsists as on again, property vest with the State. The person who cultivates the land as on is

20 20 entitled to grant the occupancy rights. Even under the Land Reforms Act, if there is no valid tenancy between a person who is in possession, by virtue of Section 9 of Inam Abolition Act, the person, who was cultivating the land as on , if such tenancy is not established, the said land would not vest with the Government. The Tribunal has held that the land is not vested with the State and it is not a tenanted land and the claimant was the owner of the land, insofar as the share of Sharaf Krishna Murthy is concerned. Insofar as the remaining share in the land belonging to the brothers of Sharaf Krishna Murthy, the petitioner or her husband never pleaded tenancy against the co-owners and paid the rent to the co-owners and they were not lawfully cultivating the land belonging to them, to be construed as deemed tenants. Under these circumstances, as on Maharaja or his wife Nagamma - petitioner were not having any tenancy rights. As on , it was not a tenanted land and therefore, the said land did not vest with the

21 21 Government. The Tribunal was justified though not for the reasons given by them in holding that they have no jurisdiction in granting occupancy rights. The learned Single Judge has not appreciated the facts of this case in proper perspective and not looked into the admitted facts on record. In particular, the land was granted on In view of the specific plea taken in the earlier suit, at an undisputed point of time, he mislead himself in recording the finding that the land in question is tenanted land and directed the Land Tribunal to grant occupancy rights in respect of the land excluding the land belonging to Sharaf Krishna Murthy. The said order is contrary to material on record and illegal and liable to be set aside. However, it is made very clear that in the final decree proceedings, which are pending before the Civil Court, the share of Sharaf Krishna Murthy, shall be allotted to the petitioner. 14. In the result, the following order is passed:-

22 22 ORDER a. The appeal is allowed. b. The impugned order is set aside. c. Parties to bear their own costs. Sd/- JUDGE Sd/- JUDGE nvj

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