BHIMAPPA CHANNAPPA KAPALI Vs. BHIMAPPA SATYAPPA KAMAGOUDA

JUDGEMENT

(1.) THE learned Single Judge of this Court while setting aside the order of the Land Tribunal, rejected the Form 7 filed by the appellant, which order was upheld by a Division Bench of this Court in appeal. Appellant challenged the said order before the Supreme Court in Civil Appeal No. 5 of 2001 and the judgment in the writ appeal came to be set aside and the matter was remitted to this Court with a direction to restore to its file Writ Appeal No. 7109 of 1999 and to dispose of the case afresh after considering the two crucial aspects, viz. :

(2.) IN order to answer the aforesaid aspects it is necessary to have a look at the facts.

(3.) SRI Jayakumar S. Patil, learned Counsel appearing for the appellant, contended firstly, that the factum of creation of tenancy by Shivawwa in favour of the appellant is proved by the entries in the revenue records and as there is a presumption in favour of the appellant under section 133 of the Karnataka Land Revenue Act, in the absence of any evidence to rebut such presumption the tenancy stands proved. Secondly, he contended even if the materials on record do not prove the case of tenancy, as the deceased appellant was lawfully cultivating the land in question belonging to another person and when that land is not personally cultivated by the owner, he is a deemed tenant under Section 4 of the Act and is entitled to be granted occupancy rights. He further submits as neither Shivawwa nor the first respondent has made any application within one year from the appointed date for a declaration that the appellant is not a tenant, the deceased appellant is deemed to be a tenant of the land in question. In support of his contention he relies on a judgment of this Court in the case of Basava Devadiga and Others v anandaraya Patali and Others , and also the judgment in the case of dahya Lala and Others v Rasul Mahomed Abdul Rahim and Qthers.