DHARMARAYASWAMY TEMPLE Vs. CHINNATHAYAPPA

JUDGEMENT

(1.) this petition is presented by Sri dbarmarayaswamy temple, Bangalore, represented by its committee of dharmadarshis questioning the legality of the order of the land tribunal, Bangalore north taluk allowing the applications filed by respondents 1 to 10 under Section 48-a(l) of the Karnataka Land Reforms Act, 1961 and granting them occupancy rights in respect of land in sy. No. 79 of neelasandra village, Bangalore north taluk.

(2.) the brief facts of the case and the history of the previous litigation regarding the claims of respondents 1 to 10 for grant of occupancy rights are these:- (i) sarvamanya neelasandra village, Bangalore north taluk was a religious and charitable inam in favour of the petitioner temple. The former state of Mysore enacted the Mysore (religious and charitable) inams abolition Act, 1955. Under the Provisions of the act all religious inam lands stood vested in the state government with effect from 1-4-1959, on which date the act came into force. The act provided that after the inam tenure is abolished, and the lands are vested in the state, occupancy rights in respect of erstwhile inam lands be conferred in favour of persons who were kadim tenants and permanent tenants under sections 4 and 5 of the act respectively. In respect of other tenants, other than kadim tenants and permanent tenants, Section 6 of the act provided that from the date of vesting the said tenants shall continue as tenants under the government in respect of the lands of which they were the tenants under the inamdar prior to the date of vesting. Section 8 of the act provided that except in respect of the categories of lands specified in the said Section, the inamdar was entitled to be registered as an occupant of the lands which stood vested in the government consequent on the abolition of the inam lands. The relevant portion of the relevant sections read:- "4. Kadim tenants to be registered as occupants of their holdings:- (1) every kadim tenant of the inamdar shall, with effect on and from the date of vesting, be entitled to be registered as an occupant in respect of all lands which, immediately before the date of vesting, were properly included in his holding." xx xx xx xx. "5. Permanent tenants to be registered as occupants on certain conditions:- (1) subject to the Provisions of sub-section (2), every permanent tenant of the inamdar shall, with effect on and from the date of vesting, be entitled to be registered as an occupant in respect of all lands of which he was a permanent tenant immediately before the date of vesting." xx xx xx xx. "6. Other tenants to be tenants under government:- every tenant of the inamdar other than a kadim tenant or a permanent tenant shall, with effect on and from the date of vesting, and subject to the Provisions of chapter iv, be entitled to be continued as a tenant under the government in respect of land of which he was a tenant under the. Inamdar immediately before the date of vesting." xx xx xx xx. "8. Lands and buildings to vest in the inamdar:- (1) subject to the Provisions of sub-section (3) every inamdar shall, with effect on and from the date of vesting, be entitled to be registered as an occupant of all lands other than- (i) communal lands, waste lands, gomal lands, forest lands, tank beds, mines, quarries, rivers, streams, tanks and irrigation works; (ii) lands in respect of which any person is entitled to be registered under sections 4 or 5; or is entitled to be continued as a tenant under Section 6; and (iii) lands upon which have been erected buildings owned by any person other than the inamdar." according to Section 4 every kadim tenant of the erstwhile inam land was entitled to occupancy rights. Section 2(8) which defined 'kadim tenants' stated that it means a tenant as defined in Section 84 of the land revenue code. According to Section 84 of the land revenue code a kadim tenant is a person who is a tenant of inam land (alienated land) paying to the inamdar (superior holder) land revenue at the established rates of land revenue. Section 2(12) defined 'permanent tenants' as those tenants of erstwhile inam land, the duration of whose tenancy was co-extensive with the tenure of inamdar. These two categories of tenants were entitled to secure occupancy rights under sections 4 and 5 respectively. If there were any other class of tenants, other than kadim tenants or permanenttenants they were entitled to continue as tenants of the government in view of Section 6 of the act. If only in respect of any erstwhile inam lands, there were neither kadim tenants nor permanent tenants, nor any other tenants, the inamdar was entitled to be registered as occupant under Section 8 except of course regarding certain categories of land, which were expressly excluded under Section 8 of the act. (ii) after the inams abolition act came into force, respondents-1 to 4 and 6, father of respondent No. 7 and husband of respondent No. 9 made applications under Section 5 of the said act claiming occupancy rights in respect of different bits of land in sy. No. 79 of neelasandra village on the ground that they were permanent tenants. The petitioner-temple also made an application before the special deputy commissioner for inams abolition under Section 8 of the act claiming occupancy rights in favour of the temple on the ground that the land was not a tenanted land. The special deputy commissioner, who was the competent authority to adjudicate the claims for occupancy rights, after due inquiry, made an order on 10th july, 1964 rejecting the application of respondents 1 to 9 for grant of occupancy rights. By the said order he granted the application of the temple for occupancy rights in respect of the entire 15 acres 12 guntas of land in sy. No. 79 of neelasandra village. (iii) aggrieved by the said Order, respondents-1 to 4 and 6, father of respondent- 7, respondent-8 and husband of respondent-9 preferred appeals before the then Mysore appellate tribunal. The tribunal by its order having found no substance in their claim for occupancy rights, dismissed the appeals and confirmed the order made by the special deputy commissioner. (iv) aggrieved by the said Order, the aforesaid respondents preferred eight separate writ petitions before this court in W.P. nos. 1515 to 1517, 1675, 1697, 2989, 1729 and 1732 of 1967. The said writ petitions were disposed of by a division bench of this court on 4-5-1970. The division bench of this court considered every one of the contentions of the respondents, who were petitioners in those petitions and rejected them. One of the contentions so considered and rejected by the division bench was that even if respondents 1 to 10 were not permanent tenants they were deemed tenants in terms of Section 4 of the Mysore tenancy Act, under which a person lawfully cultivating the land belonging to another was also regarded as a tenant. Section 4 of the Mysore Tenancy Act on which they relied (which is exactly similar to Section 4 of the Karnataka Land Reforms Act, to which we shall refer later) reads: "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, or (b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner's family, or (c) a mortgagee in possession." relying on the above provision it was contended for the respondents, who were petitioners before this court, that even if the finding that they were not entitled to occupancy rights recorded by the special deputy commissioner and confirmed by the appellate tribunal was correct, it should have been held that they were deemed tenants in view of the Section 4 of the Mysore Tenancy Act in which event they were entitled to be continued as tenants under the government under Section 6 of the act and if so occupancy rights in respect of lands in sy. No. 79 could not have been conferred under Section 8 to the petitioner as under that Section no occupancy rights could be granted in favour of an inamdar in respect of lands which were under cultivation of other tenants who were to continue as tenants under the government under Section 6 of the act. (v) the division bench considered the aforesaid contention of the respondents and rejected it. Relevant portion of the judgment reads:- "under the Provisions of the Act, sarvamanya neelasandra village vested in the government with effect from 1-4-1959. As stated earlier, the petitioners applied to the special deputy commissioner for being registered as occupants of different portions of sy. No. 79. The special deputy commissioner rejected their claim and registered shree Dharmarayaswamy temple as the occupant of entire sy. No. 79 under Section 8 of the act. The petitioners appeals from the orders ef the special deputy commissioner were dismissed by the m.r.a.t. by its common order dated 28-8-1967. Sri kadidal manjappa, Sri shivaramaiah and Sri g.s. ullal, appeared for different petitioner or petitioners. Shree Dharmarayaswamy temple represented by its dharmadarshis made applications for being impleaded as an additional respondent in all these petitions. We allow those applications and ordered the temple being impleaded as an additional respondent in each of these petitions. Sri B.V. Srinivasamurthy, Advocate appeared for the temple while the learned Advocate general appeared for state and muzrai authorities in other petitions. Learned counsel for the petitioners contended that even if the petitioners had not established the title of chikkaveerappa (who executed sale deeds in their favour) to these lands, they should have been treated as permanent tenants of these lands and registered as occupants under Section 5 of the act that they should have been regarded as deemed tenants and that at any rate they should have been continued as tenants under Section 6 of the act. It was also contended that the temple should not have been registered as the occupant of this survey number which is in a tank bed. Relying on the order of the government in muzrai appeal No. 37/1952-53, learned counsel for the petitioners argued that this order conferred on them permanent tenancy rights and that by the time the inam village vested in the government they had become permanent tenants of these lands. For the purpose of these petitions, it is not necessary to go into the question whether it was competent for the government to grant a permanent lease of a land which had been granted to a religious institution as an inam or whether the power of the government under Section 2 of the Mysore religious and charitable institutions Act, 1927 is limited to grant approval to a proposal of the committee of management of a religious institution to grant a lease of the property belonging to such institutions for a period exceeding 5 years. We shall proceed on the assumption that the government had competence to grant a permanent lease of the inam land endowed to a religious institution. From the perusal of the said order of the government in appeal, it is clear that it did not itself confer on the petitioners any permanent tenancy rights. It merely directed that they should be given permanent tenancy rights after recovering from then premium to be fixed by the deputy commissioner. The right of the petitioners to the grant of permanent tenancy was also subject to the condition of payment of the rent as might be fixed by the deputy commissioner. If they had fulfilled those conditions, they could claim the grant of permanent tenancy rights in pursuance of the said government order made in appeal and revenue authorities had to make separate order or orders granting permanent tenancy in their (the petitioners) favour. As seen earlier, the petitioners did not agree to pay the premium and the rent fixed by the deputy commissioner but challenged his order fixing such premium and rent and obtained from the government stay of the recovery of such premium and rent. Thus, the petitioners did not fulfil the conditions of the said government order in appeal and did not acquire any permanent tenancy before the inam village vested in the government on 1-4-1959. However, learned counsel for the petitioners submitted that before the government passed the order of stay, the revenue authorities had recovered from some of the petitioners some amounts towards such premium. But it has not been established that full premium at the rate of rs.1000/- per acre had been recovered from any of the petitioners before the date of vesting i.e., 1-4-1959 and that they had satisfied the conditions in the government order for claiming the rights of permanent tenancy. Hence none of the petitioners had acquired permanent tenancy, rights in any of these lands by the date of vesting. However, Sri Manjappa argued that once a lease is created the tenant's interest in the demised land is not taken away by the mere fact that the rent is in arrears. In support of this contention, Sri Manjappa relied on several decisions. It is unnecessary to refer to those decisions because in the present cases, there was no completed lease in favour of any of the petitioners. As stated earlier, the said government order in the appeal merely directed grant of permanent tenancy rights in favour of the petitioners, if they fulfilled certain conditions; as they did not fulfil those conditions, there was no such grant. It was next contended by Sri Manjappa that as the petitioners were lawfully in possession of the lands, they must be regarded as deemed tenants within the meaning of Section 4 of the Mysore tenancy Act, 1952 (hereinafter referred to as 'the Tenancy Act') and that their tenancy could not be terminated except in accordance with the Provisions of the Tenancy Act. What Section 4 of the Tenancy Act provides is that a person lawfully cultivating any land belonging to another person, shall be deemed to be a tenant if such person is not a member of the owners family or a servant of the owner or a mortgagee in possession. Thus, it is only a person who is lawfully cultivating the land belonging to another person, that can be registered as deemed tenant under this section. But tfte petitioners have not established that they were lawfully in possession of the lands. It may be, that they believed that their vendor, chikkaveerappa had good title to tltese lands and they in turn had acquired good title from him. But such belief, by itself is not sufficient to make their possession lawful when it has not been established that chikkaveerappa had title to these lands. It is not the case of the petitioners that they had taken these lands on lease from the said temple. As stated earlier, the deputy commissioner made an order of eviction of the petitioners on the ground that they were in unlawful possession of tlie lands endowed to the temple. As their possession was not lawful, they cannot be registered as deemed tenants under Section 4 of the Tenancy Act. Sri Manjappa next relied on Section 6 of the act which provides that every tenant of the inamdar other than a kadim tenant or a permanent tenant shall with effect on land from the date of vesting be entitled to be continued as tenant under the government in respect of the land which he was a tenant under the inamdar immediately before the date of vesting. As the petitioners were not tenants of these lands under the inamdar i.e., the temple before the date of vesting, they cannot claim the benefit of Section 6 of the Act, which is available only to tenants of the inamdar before the date of vesting. Lastly, it was contended by Sri Manjappa that as these lands formed part of koramangala tank bed, the temple could not have been registered as the occupant under Section 8 of the act. It is not disputed that koramangala tank had breached long before the date of vesting. Following the decision of this court in krishna murthy v state of mysore, W.P. nos. 1233 and 1234/1960 the m.r.a.t. held that though a tank bed lost its character as such, long before the date of vesting under the inams abolition Act, the inamdar would be entitled to be registered as occupant of such tank bed. Hence, we are unable to accept the contention of Sri Manjappa that there is any error and much less any manifest error in the view taken by the mrat that the temple could be registered as the occupant of the breached tank bed. Sri Ullal, learned counsel for the petitioner in W.P. No. 1675/1967, submitted that this petitioner had purchased on 26-4-1945 an extent of land measuring 23 guntas in sy. No. 79 and that the special deputy commissioner and the mrat have not considered this aspect of the case. But this petitioner has not established that the person from whom he claims to have purchased 23 guntas of land had good title to it. The fact that this piece of 23 guntas of land, had good little to it. The fact that this piece of 23 guntas had been purchased on 26-4-1945 from some persons other than chikkaveerappa, is not material because it would make no difference from whom this petitioner purchased this piece of land so long as the title of his vendor to it, had not been established. In the result, we dismiss these petitions but in the circumstances of these petitions, we direct the parties to bear their own costs. (emphasis supplied) it may thus be seen from the above judgment, the division bench of this court held as follows: (1) the respondents were not permanent tenants and therefore were not entitled to occupancy rights under the Provisions of the inams abolition act. (2) they were not even deemed tenants as defined in Section 4 of the Mysore Tenancy Act as they were not lawfully cultivating the lands in sy. No. 79, but they were in unlawful possession of the lands. (3) they were not tenants of any other class so as to entitle them to continue as tenants of government under Section 6 of the religious and charitable inams abolition act. (4) as the land was not in possession of any class of tenants, the petitioner temple was entitled to be registered as occupant under Section 8 of the religious and charitable inams abolition act. On the above findings, the occupancy rights conferred on the petitioners in respect of entire extent of 12 acres 14 guntas in sy. No. 79 of neelasandra village was upheld by this court.

(3.) after the matter was decided finally by this court, strangely respondents-1, 4 and 6 filed fresh applications before the special deputy commissioner for inams abolition claiming occupancy rights in respect of the very land in respect of which there was an earlier order by the special deputy commissioner rejecting the occupancy rights. The special deputy commissioner behind the back of the petitioner- temple granted occupancy rights in favour of respondents-1, 4 and 6 in respect of portions of lands in respect of sy. No. 79 by his order dated 22-12-1975. On coming to know of the said Order, the petitioner-temple preferred appeals before the Karnataka appellate tribunal. The tribunal disregarding the order of the division bench of this court in the writ petitions, rejected the appeals of the petitioner-temple. Aggrieved by the said order of the appellate tribunal the temple presented writ petition nos. 8791 to 8793 of 1978. These writ petitions were allowed by this court holding that after the matter stood concluded by a division bench decision of this court it was a clear case of abuse of the process of the court by respondents-1, 4 and 6 to have moved the special deputy commissioner for the second lime for grant of occupancy rights under the same Act, in respect of the same land in respect of which their claim had been rejected and the matter had become final by the division bench decision of this court imposing exemplary costs of Rs. 10,000/- on each of the three respondents viz., respondents1, 4 and 6 in those writ petitions. Aggrieved by the said Order, the three respondents preferred writ appeal nos. 283 to 285 of 1988 before this court. They were dismissed by a division bench of this court on 9-2-1988. Against the said order respondents-1, 4 and 6 preferred special leave petition nos. 10278, 10278-a and 10278-b of 1988 before the Supreme Court. The special leave petitions were also dismissed on 12-10-1988.