P G ESHWARAPPA Vs. M RUDRAPPA

JUDGEMENT

(1.) This appeal by special leave arises from the order dated 25/7/1990 of the division bench of the Karnataka High court in Writ Petition No. 4044 of 1986. Admitted facts are that one Mohammed Khan was the original owner of an extent of 2 acres 37 gunthas of land in Survey No. 22/2 of Arundi village, Honnali Taluk, Shimoga District in Karnataka State. The father of the respondents, Channabasappa was a tenant under him. Mohammed Khan sold the land to the appellant for consideration after their father had refused to purchase the land. Subsequently, the appellant again got issued notice calling upon them to pay the rent. Since the respondents' father had asserted his title and denied title of the appellant's father, he came to file a suit for declaration of title and for recovery of the possession, which was decreed on 28/9/1959 by operation of clause (g) of Section 111 (g) of the Transfer of Properly Act, 1882. Thereby, he forfeited his right to the tenancy on 28/9/19599. It was upheld on appeal

(2.) It is claimed that. the appellant had executed the decree and come into possession of the land on 13/4/1967. Subsequently, the respondents' father filed an application before the Land Reforms tribunal for claiming possession as a tenant. That application came to be dismissed. Pending those proceedings, the Amendment Act 1 of 1974 (for short, "the Amendment Act") came into force on 1/3/1974 which amended the Land Reforms Act, 1961 (for short, "the Act") which had come into force in 1965. Application filed under Section 129 was declared abated in appeal on account of the coming into force of the Amendment Act. Subsequently, another application under Section 48-A came to be filed. That has given rise to the present proceedings. When the matter was dismissed by the tribunal and came up before the High court, a division bench of that court in Writ Appeal No. 1051 of 1980 concluded that since the eviction of the respondents had taken place after the Act had come into force, an order of eviction obtained against the respondents was inoperative. Consequently, an application had to be considered for eviction in accordance with the provisions of the Act. Since that was not done the division bench remitted the matter to the Tehsildar for reconsideration in accordance with the law. When the same came to be challenged in this court in Special Leave Petition No. 2866 of 1981, by order dated 19-2-1982 this court while upholding the order of remand as legal, had given liberty to raise all the relevant questions afresh. After remand, the claim of the respondents was rejected. Ultimately, in WP No. 4044 of 1986 by the impugned judgment dated 25/7/1990 the division bench has held that their eviction under the decree obtained in OS No. 57 of 1958 was not effective by operation of Section 22 (1 of the Act. Consequently, the tribunal has committed error of law in refusing to restore possession of the land to the respondents. Therefore, directions came to be issued as under:

(3.) Shri R. S. Hegde, the learned counsel appearing for the appellant, contended that since the forfeiture of the tenancy by the respondents' father had taken place prior to the coming into force of the Act, his status of being in possession was of a trespasser and not as a tenant. When the Amendment Act had come into force, he could be said to be in possession as a trespasser. The Act, as amended under the Amendment Act, gives right only to a tenant. Since the respondents were not tenants under the appellant's father they are not entitled to the benefit of the provisions of the Act. It is also contended that Section 22 is inapplicable to the facts in this case. Since the decree passed against the respondents' father and the respondents had become final, they cannot get any right to possession under the Act. The execution had taken place in accordance with the decree and as per the law prevailing at that time and, therefore, there was no impediment in execution of the decree against the respondents. We find no force in the contention. The Act having come into force on 2/10/1965, the provisions thereof were applicable on 13/ 4/1967. Section 22 (1 of that Act, insofar it is relevant for our purpose, read thus: