DODDA HANUMANTHAIAH Vs. STATE OF KARNATAKA REVENUE DEPARTMENT

JUDGEMENT

(1.) WE have heard the appellant's learned advocate and the respondents' learned advocate as also the teamed Government advocate on merits.

(2.) THE basic point that is agitated in these appeals centers around the question as to whether the Tribunal was justified in declining the appellant's application for grant of occupancy rights in respect of the land bearing Sy. No. 42/3 measuring 30 guntas, principally on the ground that having regard to the peculiar facts and circumstances, the appellant could not have conferred tenancy rights.

(3.) WE need to straight away record that the land originally belonged to the father of the appellant and that after the death of the father by gift deed dated 17. 6. 1972 the land in question was gifted to the sister by the name of Narayana. Narayana in turn sold the land by registered sale deed to the 3rd respondent in the year 1974. We are not concerned with the second transaction because the real dispute arises with regard to the status of the petitioner after the date when the gift deed was executed. There is no dispute about the fact that the sale deed was executed in June 1972 but the petitioner seeks to contend that during the next two years, the appellant's name has appeared in the cultivator's column. The appellant's learned advocate vehemently submits that the Tribunal as also the learned Single Judge were obliged to go by these entries. The explanation tendered by him is that even though the land was owned by the sister since she resided at another place, that she in turn had leased the lands to the appellant, who for all the purposes became the tenant. His contention is that even if the appellant is the real brother of Narayana that there is no legal bar to his being construed as the tenant, if the facts of the case so justify. Reliance is sought to be placed on an old decision of this Court reported in gopal RAO vs LAND REFORMS TRIBUNAL, BASAVAKALYAN and ANOTHER, wherein the learned Single Judge had opined that there is no prohibition for the petitioner in that case to hold the lands belonging to his brother on lease on account of their personal relationship. The contention raised is that on the facts of the present record, the decision would assist the present appellant. We need to straight away mention that the proposition referred to in the. decision in question is an extremely doubtful and legally untenable one, but we do not need to examine that aspect of the case because the court has to first examine the record for the purposes of ascertaining whether the facts justify such a contention being pleaded. Where a tenancy is pleaded and that too based on a lease, it would be incumbent that the burden of providing the tenancy devolves on the party who claims the tenancy. This is a case in which a lone contention has been taken up. The person who has executed the lease has not been examined. The lease if at all one was in existence is not forthcoming nor is there even the slenderest piece of evidence to justify any such relationship. As rightly observed by the learned single Judge, merely because there are two stray entries in the extracts for the years in question would not justify the appellant from contending that the appellant should be invested with the status of tenant. Tenancy is a concept in law which requires several ingredients, the most important one is the type of relationship which is evidenced from a lease and secondly, the aspect of payment of rent which is totally absent on the facts of the present case. Where there is a close relationship between the parties, the possibility of any such lease having been executed or being in existence would normally or naturally become remote and unless there is such specific evidence, it would not at all be permissible for the Court to uphold such a contention. Further more, in the course of the hearing we have even more carefully scrutinized all the material on record and we do find that very shortly after the gift deed, the owner Narayana alienated the land and this is totally and completely against the possibility or probability of her having made her own brother who is the appellant the tenant. It is in this background that after a proper consideration of the case, the tribunal rejected the plea of tenancy. The learned Single Judge has thereafter re-examined the contention as the detailed reasoning indicated as to why the plea of tenancy cannot be upheld under any circumstances. Since the appeals have been filed before us, we have reviewed the order passed by the learned Single Judge and we do not find any error in that order either on points of fact or on points of law.