LAWS(KAR)-2012-6-200

MONAPPA NAIKA Vs. LAND TRIBUNAL

Decided On June 06, 2012
MONAPPA NAIKA Appellant
V/S
LAND TRIBUNAL Respondents

JUDGEMENT

(1.) LAND Tribunal, Puttur by order dated 6.9.20. 4-Annexure A, has rejected the claim of the petitioner on the ground that properties in question in various survey numbers of Survey Village of Puttur are mortgage properties and mortgage extended from 1969 for a period of eight years i.e., till 1977 and that the applicant failed to prove that he was in possession as on 1.3.1974.

(2.) HEARD the Counsel representing the parties. As it transpires, 3rd respondent Saraswathi and her mother Honnamma are the mortgagors and one Muthappa Poojary is the mortgagee to whom there was a mortgage for the period 1969 to 1976 by way of usufructuary mortgage as per the mortgage deed. It appears, after the mortgage, as per the contention of the petitioner herein, mortgagee 'has created chalgeni tenancy in his favour as such, by virtue of the same, he continued in possession as a chalgeni tenant as per the records, as is available up to 1.3.1972. Therefter, in Dakshina Kannada district, as there are no entries as regards continuation of tenancy for several years, there are no entries available but, as per the evidence on record, he continued to be a tenant even as on 1.3.1974 and beyond that. He being a chaigeni tenant under the mortgagee, it binds the mortgagor as a deemed tenant as per S.4 of the Land Reforms Act and also as is enunciated in the judgment of this Court rendered in the case of Basappa K.K. Vs. Land Tribunal, Somwarpet & Anr., 1976(1) KLJ 272. Learned Counsel ha- also relied upon the judgment rendered under the Bombay Tenancy Act ar. to the position of a tenant under the mortgagee and regarding termination of tenancy of the tenant under the mortgagee, in the case of Dahya Lata & Ors. Vs Rasul Mahomed Abdul Rahim & Ors., AIR 1964 SC 1320. Per contra, Counsel representing the 3rd respondent / landlord has relied upon the Divis on in the case of Shankar Kalyan Kulkarni & Ors. Vs. Basappa Sidramappa Kolar & Ors., 1969(2) MLJ 77 to contend mortgagee in possession does not fall under the definition of deemed tenant' and that petitioner cannot be treated as a 'deemed lawful tenant in view of the restricted covenant in the mortgage deed to the effect that mortgagee is to only enjoy the property by himself and that it has to be read as lease hold rights cannot be created nor transferred to anybody. In that view of the matter, petitioner cannot be treated as a deemed tenant by virtue of which he can claim occupancy rights stating as on 1.3.1974, he continued in possession as per the evidence.