MALLAPPA BHARAMAPPA MADAR Vs. BASAVANTAPPA SHIVARUDRAPPA MALAGI

JUDGEMENT

(1.) this petition is directed against an order made by the land tribunal, declaring respondent no. 1 as the tenant in respect of land comprised in sy. No. 37 on the western side measuring about 1 acre 20 guntas in aladakatti village in hirekerur taluk. That order arose out of form no. 7 filed by respondent no. 1 in terms of section 48-a of the Karnataka land reforms act (hereinafter referred to as 'act'). On an earlier occasion the tribunal had held that the first respondent was not a tenant in respect of the land in question, by its order dated 23-5-1977, against which a writ petition was filed before this court and this court by an order made on 29-6-1983 quashed that order and remitted the matter for fresh consideration. Since the tribunal had relied upon a document 'agauva lavani patra' to hold that respondent no. 1 is not a" tenant, it was asked to decide the rights arising under the said document, in favour of respondent 1, and whether he would be a tenant as on 1-3-1974. The tribunal on the examination of the matter found that the revenue records disclosed that the first respondent had been cultivating the land in question. They also took into consideration the statements made before them and also an order made on 30-11-1978, that he had obtained possession from respondent no. 1 pursuant to an order made by the taluka executive magistrate under Karnataka Debt Relief Act, 1976, who treated the transaction as 'agauva lavani patra' to be a mortgage and redeemed the petitioner of the debt. Taking that factor into consideration, the tribunal found as on 1-3-1974 respondent no. 1 was in possession of the land in question and the copy of the 'agauva lavani patra' also discloses that the first respondent had been cultivating the land in question as tenant from 1963 till date. On that basis it held that the land was a tenanted land continued to be so even after 'agauva lavani patra' was entered into between the parties and came to the conclusion the first respondent must be held to be a tenant.

(2.) the impugned order is attacked by the petitioner on to grounds firstly it is contended that the 'agauva lavani patra' had been executed on 21-5-1975 and that after this transaction the lease in favour of the first respondent merged with the rights arising under this 'agauva lavani patra' transaction and therefore the lease was no longer is subsistence and hence the tribunal could not have held as on 1-3-1974 the first respondent was a tenant in respect of the land in question. It is brought to our notice that by an order dated 30-11-1978 it held that the petitioner was a debtor in terms of the Karnataka debt relief act and the debt stood extinguished and he was redeemed of the mortgage and therefore, it is contended that the right of lease got merged in the right of mortgage and the mortgage was redeemed on 30-11-1978 and the possession also taken of by the petitioner of the land in question, the first respondent would not take advantage of section 25 of the Karnataka land reforms act. It is next contended that the lands in question are service inam lands governed by the Karnataka Village Offices Abolition Act, 1961, and the rights thereto are regulated by that act and hence the tribunal had no jurisdiction to make the order in question.

(3.) in order to appreciate the contention advanced on behalf of the petitioners it is necessary to refer to the recitals in the document which is styled as 'agauva lavani patra' in some detail. In that document it is stated after the preamble that for purposes of household expenses and as he had to discharge certain hand loans and also to discharge the loan obtained from a society for the purpose of the marriage expenses of his daughter, he obtains a sum of Rs. 100/- per year between 1972 and 1983 for a period of 11 years towards the land already under cultivation of the first respondent from 1963 onwards. After giving the description of the land it is stated that possession has to be delivered in march, 1983. There is no recital regarding treating the amount as loan at all. The petitioner also states as having received theamount thereto.