ULAVAPPA Vs. SUB DIVISIONAL MAGISTRATE DHARWAR

JUDGEMENT

(1.) This petition under Article 226 of the Constitution, is directed against the order made by the Sub-Divisional Magistrate, Dharwar, under Sec.4 of the Karnataka Debt Relief Act, 1976 (called shortly 'the Act). Briefly seated, the facts are these: A.Y.Choukinavar, Respt-3, is the owner of the land to an extent of 8 acres in Block No. 1000 of Aminabhavi village, Taluk Dharwar. He delivered possession of the land to the petitioner by receiving Rs. 5,000 and executing a registered deed; styled as 'Illavatti' in favour of the petitioner. After coming into force of the Karnataka Land Reforms Act, 1961, the petitioner applied to the Land Tribunal, Dharwar, for occupancy rights in respect of the said land stating that he is in possession of it as a tenant and the deed executed by Respt-3 was a lease in his favour. That matter is still pending consideration before the Tribunal In the meanwhile, the Karnataka Debt Relief Act 1976. came into force, and Respt-3 moved the Sub-Divl Magistrate under S.4 of the Act, contending that he had mortgaged the land in favour of the petitioner and he is entitled t0 get back possession of the land as the mortgage debt has been extinguished by the operation of law. The petitioner, while resisting the application of Respt-3, inter alia, contended that he is in possession of the land as a tenant; that his application for occupancy rights is pending before the Land Tribunal, and the transaction relied upon by Resp-3 is not a mortgage but a lease. He also prayed that till the Tribunal gives its decision, the Sub-Divisional Magistrate should not proceed with the application of Respt.3.

(2.) The Sub-Divisional Magistrate, however, proceeded to hold an enquiry in the course of which Respt-3 produced four witnesses in support of his claim, and the petitioner in his turn also examined four witnesses to prove, in particular, that the total income of Respt-3 was less than Rs.2,400 per annum. Upon consideration of the evidence, the SubDivisional Magistrate concluded thus : The applicant has stated that his income is less than Rs.2,400 per annum. He has examined 4 witnesses on his behalf who stated that the applicant's only income is from what he earns by working as coolie. They stated that he earns Rs.4 to 5 per day and that this is his only source of income. The 4 witnesses that the opponent has examined have stated that the applicant also sells grains. However, only one witness has stated that the applicant gets Rs.300 as monthly income. One witness has stated that the applicant gets Rs.100 to 150 through his business. One has stated that now the applicant has stopped seling milk as he used to. The 4 witnesses state that the applicant sells grains, but that he does not know of the income the applicant gets. From the evidence on record, I am satisfied that the applicant's income is below Rs.2,400 per annum. Hence the order".

(3.) The validity of the aforesaid order is called into question in this petition.