HALERANGAIAH Vs. STATE OF KARNATAKA BY ITS SECRETARY

JUDGEMENT

(1.) Petitioner has sought for quashing the order of the Land Tribunal, Nelamangala in LRF BGH 5/75-76 on 17.6.2003 - anenxure Q and for a direction to the Land Tribunal to grant occupancy rights in his favour in respect of Sy. No. 29/4A measuring 1.29 acres and 29/4B measuring 1.32 acres situate at Beerabondanahalli Village, Nelamangala Taluk. According to the petitioner who is the son of Halerangaiah, his father was cultivating the lands in question since 1965 on gutta basis under the lease deed executed by Abdul Sattar and had been enjoying the property as a tenant. He filed Form 7 for grant of occupancy rights based on the lease deed of 1965. Originally the Land Tribunal based on inquiry, granted occupancy rights during March 1979 as per annexure B in LRF/BGH 5/76-77. According to the petitioner, there is a guttige karar entered into between Abdul Sattar and Halerangaiah on 1.5.1965 and there is also receipt of guttige (vara) by one Mohammed Muneer S/o Abdul Sattar. Further according to him, as per the finding of the Land Tribunal, there is a mortgage deed in favour of Halerangaiah in the year 1969 and the mortgage period is up to 1976 and thereafter, petitioner's father continued to cultivate the land as a tenant from the year 1965 continuously. Also, this Abdul Sattar died in the year 1967 and gutta was paid to Muneer s/o Abdul Sattar. The said order of the Land Tribunal granting occupancy rights was challenged before this Court by the 3rd respondent in WP 3901/1979 and on the contention of the 3 rd respondent that his father died in the year 1962 and there is no such lease deed executed, matter was remanded. According to the petitioner's counsel, there is a lease deed executed in the year 1965 and the father of landlord died in the year 1967 and not during 1962 as contended by the respondent son of the landlord and by obtaining a false certificate from the Tahsildar that Abdul Sattar died on 22.6.1962, he has got the matter remanded. After remand, Land Tribunal has committed an error in rejecting the claim of the applicant.

(2.) According to the Learned Counsel for the petitioner, by virtue of the lease in the year 1965, the tenancy continued despite the mortgage being created in respect of the property in question. Only on the ground that there was a mortgage, without looking into the fact that there was also a lease, the Tribunal proceeded to reject the claim of the petitioner's father which is erroneous. In support of his argument, counsel has relied upon the judgment of the Division Bench of this Court in the case of Melegowda Vs Gaibu Sab & Anr, 1978 1 KarLJ 155 to contend that as per S. 26 of the Karnataka Land Reforms Act, there is a over riding effect under S. 111 of the Transfer of Property Act and S. 111 of the Transfer of Property Act would not apply to cases of lease followed by mortgage and also it is his submission, it is not open to the respondent to contend that lease comes to an end by reason of implied surrender contemplated under S. 111 of the Transfer of Property Act. He has also relied upon the case of Bettegowda Vs K Venkataratmnaiah & Ors, 1982 ILR(Kar) 924 wherein it is held, in case of a landlord creating a usufructary mortgage in favour of the tenant, the issue of tenancy arises and the same has to be referred to the Tribunal.

(3.) Per contra, counsel for the respondent submitted, there was no such lease deed executed by Abdul Sattar in favour of petitioner's father in the year 1965 rather in the year 1962 itself, the father of the respondent died as such, there is no question of executing a lease. As per S. 9 of the Civil Procedure Code, when there is dispute as to date of death, it is for the tenant who conies to the Tribunal to establish by approaching the civil court, the exact date of death to stand by his contention that the death of Abdul Sattar is not in 1962 but it is in 1967 and this finding has to be given by a civil court and not by the Land Tribunal. Accordingly, he has relied upon the decision of this Court in the case of State of Karnataka Vs T Srinivas, 1987 1 KarLJ 387 and also contended that S. 4 and S. 26 of the of the Land Reforms Act makes it clear that when the property in question was mortgaged, during the period of mortgage, tenancy was kept in abeyance. There is redemption of mortgage in the year 1976 by way of an endorsement which is a registered one and it clearly speaks to the fact of delivery of possession of the land in favour of the mortgagor and submitted as on 1.3.1974, petitioner was never a tenant and even assuming he was a tenant, his tenancy right was kept dormant as such, it was operating only as a mortgage till the mortgage is redeemed and mortgage is redeemed in the year 1976. As on 1.3.1974, he was not a tenant, his tenancy rights were suspended and also in the year 1976 as a matter of contractual obligation between the parties, there was delivery of possession in favour of the respondent. Further, it is contended that there is no lease deed as such being executed by Abdul Sattar in favour of the petitioner and it is all concocted and it is for the petitioner to establish the date of death of Abdul Sattar as not during 1962 and it is only during 1967, as a matter of burden of proof under S. 100 of the Evidence Act and accordingly, sought for dismissal of the petition.