SIMON REBELLO Vs. DAVID SOUZA

JUDGEMENT

(1.) This revision petition is by Sri "Simon Rebello against the order passed by the District Judge, South Kanara, Mangalore, in Misc. App.217 of 1968, affirming the order passed by the Land Tribunal at Puttur, South Kanara, in Restoration Petn. No.1 of 1967. The petitioner made an application under S.7 of the Mysore Land Reforms Act, 1961 (hereinafter will be referred to as the Act'), for restoration of possession alleging that he was a tenant of the suit lands. His case is that he was unauthorisedly dispossessed by an illegal surrender some time in June 1962 by one Brahmayya Shetty. Sri Brahmayya Shetty who resisted the application contended that the lands are in actual possession of his tenant David Souza. The petitoner, therefore amended his petition and impleaded the said David Souza as respondent No.2 before the Land Tribunal. The application was resisted by Brahmayya Shetty as well as David Souza. The Land Tribunal dismissed the application of the petitioner. The said order has been affirmed in appeal by the learned District Judge of South Kanara, Mangalore. During the pendency of the appeal in the lower appellate Court, Brahmayya Shetty having died, his legal representatives were brought on record.

(2.) Sri Tukaram S. Pai, learned Counsel for the petitioner, submitted that the Courts below have committed an error of law in dismissing the petitioner's application for restoration of tenancy and possession filed by him under S.7 of the Act. He submitted that David Souza, respondent No.1, not being a bona fide tenant, was not entitled to claim the benefit of the proviso to sub-sec. (2) of Sec.7 of the Act. The Courts below after considering the rival contentions and the evidence placed 'by the parties have recorded a categorical finding to the effect that David Souza is not a member of the family of the landlord and that he is a person who' came on the land as a bona fide tenant. That finding is essentially one of fact and is not liable for interference in this revision petition.

(3.) Sri T. S. Pai further submitted that even if the first respondent is entitled to claim the benefit of the proviso to sub-sec. (2) of S.7 of the Act, the application of the landlord could not have been dismissed in its entirety. He submitted that if the conditions specified under the proviso to sub-sec. (2) of S. 7 are satisfied the Court is precluded from making an order for restoration of possession in' favour of the applicant; but that the same does not entitle the Court to refuse to make an order for restoration of tenancy in favour of the petitioner.