BALU GOPAL DESAI Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS is the second round of litigation fought between the deceased petitiotenant and the deceased Respondent No. 3 and his L. rs. The deceased petitioner Balu Gopal Desai who filed this writ petition challenging the impugned order dated 7/9/1996 passed by the 2nd respondent, in Case No. TNC. SR:1941 at Annexure-C, whereby the Land Tribunal Respondent No. 2 rejected Form No. 7 filed by the deceased petitioner to confirm occupancy rights in respect of land Sy. No. 106 old Sy. No. 85/2 measuring 10 acres 25 guntas of Hadalga village in Hukkeri taluka, mainly on the ground that the order of rejection of declaration filed by the deceased petitioner in Form No. 7 filed under Section 48a of Karnataka Land Reforms Act is contrary to law and evidence on record. The Land Tribunal has failed to appreciate the documentary evidence borne by record of rights and other revenue records to show that he was a tenant and tenancy of the deceased petitioner was uninterrupted since many years and as on 5/3/1974 and later. The finding of the Land Tribunal that there was surrender of land by the tenant is totally misunderstood in view of the clear position of law regarding continued tenancy. That apart the tenant has established beyond doubt that the possession was not delivered by the deceased petitioner at any point of time. The proceedings noted are without jurisdiction since it is below the rank of Mamaltdar under B. T. A. L. Act. The order of the Land Tribunal is a nullity since vasant Rao s/o Laxmibai died during the pendency of the application. Therefore, the order cannot be sustained in the eye of law. A dead person cannot be a party to the proceedings. The best evidence on behalf petitioner placed on record is rent recovery and presumed continued tenancy. The ground of surrender is not even examined regarding competency and its validity. There was no delivery of possession both on admission by landlord and rent recovery proceedings. Hence this writ petition.

(2.) HEARD the arguments of learned Counsel for L. Rs of deceased petitioner, L. Rs of deceased respondent No. 3 and learned High Court Government Pleader for Respondents-1 and 2.

(3.) DURING the course of argument, Sri Ravi S. Balikai learned Counsel for L. Rs of petitioner submitted that the deceased Balu Gopala Desai was a tenant under Sanjay Vasantrao Joshi in respect of land Sy. No. 106 old No. 85/2 measuring 10 acres 25 guntas of Hadalga village Hukeri taluk. The three documents produced by the deceased petitioner before the Land Tribunal disclose that he was cultivating the land as a lawful tenant much prior to 1956 and he was paying necessary rents; land revenue records and entries in the Record of Rights disclose that deceased petitioner Balu Gopal Desai was a lawful tenant and that he never surrendered the said land and he was not aware of any order passed by Tashildar, A. K. Hukeri on 22/11/1956 in TNC suit No. 708/56. Therefore, the order passed by the Land Tribunal that the father of the deceased petitioner had already surrendered the land way back in the year 1956 is incorrect. It is contended that in 1956 there are entries in the record of rights. The land revenue receipts clearly disclose that late Balu Gopal Desai was in possession and enjoyment of the said land. Further, it is submitted that Venkatesh Hari Joshi of Bhairapur had initiated rent recovery proceedings against deceased petitioner before the authority concerned for recovery of rents for the year 1970-71 and so that itself discloses that even after 1956 to 1970 the very deceased Respondent no. 3 himself initiated rent recovery proceedings stating that deceased petitioner was due in a sum of Rs. 1940/- as rent for the year 1970-71. Therefore, neither the deceased petitioner nor his l. Rs were dispossessed from the possession and they are in possession of the said lands. Therefore, the impugned order passed by the Land Tribunal on the basis of the majority opinion of the members is not a speaking order, no proper reasons are assigned to come to such a conclusion and the documents produced by the deceased petitioner has not been looked into and referred by the Land Tribunal, therefore the impugned order under challenge is to be set aside. Further it is contended by the learned Counsel for the petitioner that even if the land has been surrendered by the tenant, if he continues to be in possession of the land immediately prior to 1/3/74 without dispossession, that the occupancy rights should be confirmed. But in the instant case, it is contended that the Land Tribunal has not followed the procedure as contemplated and the evidence lead by both the parties has not been considered. Hence the impugned order under challenge is liable to be set aside/quashed. In support of his contention learned Counsel for the petitioner relied on a decision reported in Head Note A (Ramchandra keshav Adke (Dead) By L. Rs v. Govind Joti Chavare and Ors.), which reads as under: head Note A: Bombay Tenancy and Agricultural Lands Act (67/48) (as amended in 1952)Section 5 (3) (b) - Bombay Tenancy and Agricultural Lands Rules (1956) Rule 2-A Surrender by tenant-Requirements-Provisions are mandatory and not directory-Non-compliance-Effect-Verification-nonrecording of satisfaction by authority-surrender vitiated. And also another decision reported in 1980 (1) KLJ 281 (Putta Gowda. v. State and Ors.), wherein it has been held as follows: where even after order permitting surrender registered in 1965 a tenant was in possession he must be held or deemed to be a tenant granted occupancy rights. Mere permission to surrender without delivery of it does not apprehend the relationship of landlord and tenant delivery of possession by the tenant to the landlady is acceptance from the possession or initiated to effect to surrender. 3. On the other hand learned High Court Government Pleader for Respondents-1 and 2 submits that since the land in question has been surrendered by the deceased petitioner/applicant and to that effect, an order has been passed on 22/11/1956 and many of the members opined that the land has already been surrendered much prior to 1/3/74 and the Tribunal was right in rejecting the application filed by the deceased petitioner for grant of occupancy rights. Therefore, the impugned order does not suffer from any infirmity and the present writ petition is to be dismissed.