H R GOPALAKRISHNAIAH Vs. LAND TRIBUNAL

JUDGEMENT

(1.) HEARD the Counsel for the petitioners and the Counsel for the respondents. '

(2.) THE facts are as follows : one Gopalakrishnaiah was the owner of the land in Survey No. 65/1 measuring 22 guntas and the land in survey No. 65/2 measuring 26 guntas of Hassan Village, Hassan Taluk, hassan district. It is stated that he had mortgaged the said lands by way of an usufructuary mortgage under a register deed in favour of one K. S. Subba rao the third respondent here in. It is contended that the deceased respondent No. 2 had filed Form No. 7 claiming occupancy rights in respect of the very land and the Tribunal on an admission by K. S. Subba Rao, the mortgagee in possession, has granted occupancy rights, by order dated 21-1-1977, in favour of the deceased second respondent, who is now represented by his legal representatives. The said order was challenged by the petitioners in writ petition before this Court in W. P. No. 3582/1977 and the same having been allowed, the order was set at naught. On remand, however, the Tribunal having proceeded to grant occupancy rights in favour of the claimant yet again, the petitioners are before this Court.

(3.) SHRI B. G. Sridharan, Senior advocate, appearing for the Counsel for the petitioners, would contend that this Court having allowed the writ petition in W. P. No. 3582/1977 setting aside the order of the Tribunal dated 21-1-1977, there was no scope for the tribunal to have placed reliance the statements made in the proceedings of the Tribunal held earlier and the Tribunal seeking to place reliance on a statement made by K. S. Subba rao, who was no more on the date of the proceedings held by the Tribunal the order suffers from an infirmity, which goes to the root of the matters the Tribunal having placed such reliance is not permissible in law. Further he would also point out that the lands were mortgaged with possession to k. S. Subba Rao as early as in the year 1953 and while there was reference to one Appa Saheb, who was shown as a cultivator in occupation at that point of time, the said Subba Rao had take possession for Appa Saheb as a mortgagee. There was no document to evidence the lease created either by the petitioners before the mortgage or by Subba Rao after the mortgage, nor was there any indication of any sub-lease from Appa Saheb from whom subba Rao had taken possession. This being the position, Subbegowda, the deceased second respondent could not have claimed tenancy under him, his son or grand children, in the absence of any such documents indicating such tenancy. He would also submit that mere reference to entries in the pahanies, for some years, appearing in the name of subbegowda, could not have been relied upon by the Tribunal to hold that tenancy in respect of the lands have been established. The contention that the said Subbegowda was a tenant, who was apparently claiming under the mortgagee in possession could not claim as a tenant, for the reason that Section 4 of the Karnataka Land reforms Act, 1961 (hereinafter referred to as 'the Act' for brevity) clearly excludes a mortgagee in possession and a person claiming under such a mortgagee cannot derive any larger right than what a mortgagee in possession would derive. Hence,by implication could not be deemed as a tenant in terms of express provisions of Section 4 of the Act and would therefore, submit that even if it is to be accepted, there was tenancy created by a mortgagee in possession, the same is not forthcoming. It is contended that acceptance of Form No. 7, said to have been filed by Subbegowda, ought to have been rejected at the threshold and there was no scope for the Tribunal to have placed reliance on nebulous entries to confer occupancy rights, in favour of the said respondents 2 (a) and 2 (b), after a lapse of 20 years.