Narasamma And Ors vs State Of Karnataka And Ors

Narasamma & Ors. ....Appellants

VERSUS

State of Karnataka & Ors. ....Respondent

JUDGMENT

TARUN CHATTERJEE,J.

1. One Lingachari sold land measuring about 6

Acres 7 Guntas in Serial No. 55 within

Gulakamale, Uttarahalli, Hobli, Bangalore,

South Taluk, Karnataka, (hereinafter

referred to as "the land in dispute"), to one

Muniyappa, the father of the appellants, in

the year 1954. In 1960, the father of the

appellants, Muniyappa sold the land in

dispute in favour of one Ashwathaiah who in 2

turn sold it to one P. Ramaiah, who also in

his turn sold the land in dispute to Rama

Reddy, the respondent herein. On or about

1960-61, the respondent, created a tenancy

right in favour of the father of the appellants

in lieu of share of crop for two years. The

Record of Rights was published in the year

1969 which recorded the appellants as

tenants and the respondent as landlord

relating to the land in dispute. The Record of

Rights further recorded that the type of

cultivation was Gutha (Rent). The

respondent, who was the landlord in respect

of the land in dispute, in the year 1971, filed

an application for recovery of rent against

the appellants before the Additional Munsif,

Bangalore in Rent Recovery Case No.114 of

1971. An order was passed in favour of the

respondent on 29th of June, 1972 directing

payment of arrears of rent in the aforesaid 3

recovery case. The Karnataka Land Reforms

Act, 1961 (in short, "the Act") was amended

on 1st of March, 1974 and Sections 44, 45

and 48A of the Act entitled all agricultural

tenants to apply under Form 7 for

confirmation of ownership. In view of the

above, Muniyappa, the father of the

appellants, filed Form No.7 to register him

as an occupant in respect of the land in

dispute before the Land Tribunal under the

Act. Muniyappa died on 3rd of October, 1976

during the pendency of the said application.

In 1977, the appellants filed a fresh Form

No.7. By an order dated 24th of July, 1979,

the Land Tribunal disposed of the

application filed by the appellants after,

inter alia, making the following findings:-

(i) Muniyappa, the father of the

appellants, cultivated the land for two

decades;

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(ii) Adjacent landowners, deposed that the

land in dispute was in possession and

cultivation of the appellants on lease

basis.

(iii) The names of the appellants in respect

of the land in dispute were recorded in

the Record of Rights for the years

1973-74 as cultivators also on lease

basis.

(iv) The respondent-landlord admitted

factum of tenancy by claiming rent for

the period from 1966-72 by filing an

application for recovery of arrears of

rent for the years 1966-72 in respect of

the land in dispute in RRC Case No.

114/71 wherein an order was passed

on 29th of June, 1972 decreeing the

case for payment of arrears of rent;

(v) The appellants were entitled to inherit

the tenancy rights and, therefore, 5

entitled to be registered as occupants

in respect of the land in dispute.

(vi) The tribunal also recorded that the

appellants had made out a prima facie

case so far as their possession and

cultivation of the land in dispute as

tenants, were concerned.

2. In spite of the aforesaid findings, the Land Tribunal

rejected the application of the appellants simply on the

ground that since the tenants were claiming the land in

dispute as their own, they had not established their tenancy

rights. Feeling aggrieved by the aforesaid order of the Land

Tribunal, a writ petition was moved at the instance of the

appellants before the High Court which by its order dated 5th

of February, 1985 remanded the case back for fresh

disposal after setting aside the said order for reconsideration

of the said application after re-assessing the entire oral and

documentary evidence on record. This order of the High

Court was, however, not challenged either by the appellants

or by the respondent.

6

3. After remand, the Land Tribunal again by its order

dated 12th of June, 2002 rejected the application of the

appellants and directed the Tehsildar to take further action,

inter alia, on the grounds that :-

(i) Entries in the Record of Rights

relating to the land in dispute were

forged ;

(ii) No co-relationship existed between

the Rent Recovery Proceeding and

the tenancy proceedings.

4. Feeling aggrieved by the aforesaid order of the Land

Tribunal, a writ petition was filed in the High Court which

was disposed of on 6th of June, 2003 by an order in which

the learned Single Judge of the High Court had come to the

conclusion that the appellants were in possession of the

land in dispute. However, it was held by the High Court

that the appellants must produce some materials to show

that the appellants had acquired tenancy rights in respect of

the land in dispute without considering the findings of the 7

Rent Recovery proceedings and admission of the

respondent on the question of possession and tenancy of the

appellants in respect of the same. In appeal, the Division

Bench of the High Court also confirmed the order of the

learned Single Judge after making, inter alia, the following

observations:-

"The appellants-petitioners have not been able to show that they were in possession of the land and the learned Single Judge on consideration found that in the absence of any material produced before the Tribunal, the petitioners cannot take advantage to get the tenancy rights in their favour, though they may be in possession. The learned Single Judge observed that mere possession does not indicate the status and therefore held that the Tribunal was justified in rejecting their request as they have failed to prove their tenancy."

A reading of this finding of the Division Bench of the High

Court would only lead us to hold that the findings arrived at

on the question of possession of the appellants relating to

the land in dispute were contradictory. At one place, the

Division Bench observed that the appellants could not show

that they were in possession of the land in dispute and in

another place the Division Bench observed that they may be

in possession, but such possession cannot lead the court to 8

hold that the appellants had acquired tenancy rights

relating to the land in dispute.

5. Feeling aggrieved by the order of the Division Bench,

the present Special Leave Petitions were filed by the

appellants in this Court, which on grant of leave were heard

in the presence of the learned counsel for the parties.

6. Having heard the learned counsel for the parties and

after going through the materials on record, the only

question that needs to be decided in the present appeals is

whether the land in dispute was tenanted on 1st of March,

1974, i.e. the day on which the Act was amended and

Sections 44, 45 and 48A of the Act were introduced. As

noted herein earlier, the appellants had brought on record

the following documents and evidence to substantiate their

case of tenancy in respect of the land in dispute on the

notified date :-

(i) Admission of the landlord-

respondent made in the year 1960-

1962. 9

(ii) Judgment and order dated 29th of

June, 1972 in Rent Recovery

proceedings for the period from

1966 to 1972.

(iii) Entries in the revenue Record of

Rights relating to land in dispute

from 1969 to 1997.

(iv) Evidence of independent witnesses

of adjoining areas;

7. It may be mentioned herein that against the aforesaid

documents and evidence produced by the appellants in

order to prove their possession and right of tenancy relating

to the land in dispute, the respondent, however, had failed

to produce any document to establish that he was in

possession of the land in dispute on the relevant date i.e. on

1st of March, 1974.

8. From a bare perusal of the orders passed by the Land

Tribunal and the learned Single Judge as well as the

Division Bench of the High Court, it is clear that the

appellants were found to be in possession and in cultivation 10

of the land in dispute. The only ground on which the claim

of tenancy right of the appellants was not accepted either by

the Land Tribunal or by the High Court was that the

appellants had failed to produce any document or material

to show that they had acquired tenancy rights in respect of

the land in dispute on the appointed day. In view of our

findings made herein above that the appellants had

produced sufficient material to prove that they had acquired

the tenancy right in respect of the land in dispute, viz., the

admission of the landlord respondent in the rent recovery

proceedings that -

(i) The appellants were tenants and,

therefore, were liable to pay rent to the

respondent in respect of the land in

dispute.

(ii) The entries in the record of rights in

respect of the land in dispute would

also show that the type of cultivation

was gutha (rent).

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(iii) The adjacent landowners in their

deposition also deposed that the

appellants were in possession and

were in cultivation of the land in

dispute on a lease basis.

(iv) The names of the appellants in

respect of the land in dispute were

recorded in the record of rights as

cultivators on lease basis.

9. Appearing on behalf of the appellants, Ms. Indu

Malhotra, learned senior counsel, at the first instance,

contended that while deciding the issue raised before the

High Court as well as the Land Tribunal, the entries in the

relevant Record of Rights relating to the land in dispute and

also the above aspects of the matter were not at all

considered. Relying on a judgment of this Court in the case

of Siddawwa Kom Udochappa Vaddar & Anr. Vs.

Ningayya Erayya Hiremath & Ors. [1999 (1) SCC 176],

Ms. Indu Malhotra, learned senior counsel contended that

in view of the findings of fact arrived at by the Land Tribunal 12

as well as by the High Court that on 1st of March, 1974 and

thereafter, the appellants continued to be in possession of

the land in dispute and in cultivation of the said land and

therefore, they were necessarily entitled to registration as an

occupancy right holder.

10. The learned counsel appearing for the respondent

contested the aforesaid submission of the learned senior

counsel appearing for the appellants and sought to argue

that the appellants had miserably failed to prove that they

were tenants under the deceased Rama Reddy or his

predecessor-in-interest and in view of the fact that the two

courts concurrently found that although the appellants were

in possession of the land in dispute had failed to prove their

status in respect of the land in dispute, would not be

entitled to any relief.

11. Having examined the aforesaid submissions of the

learned counsel for the parties and after going through the

impugned order and the materials on record, we are of the

view that the judgment of the High Court is liable to be set

aside for the reasons mentioned hereinafter. Taking into 13

consideration the findings of fact on the question of

possession arrived at by the High Court as well as the Land

Tribunal that the appellants were in possession and in

cultivation of the land in dispute and considering the

admission made by the landlord/respondent that the

appellants were tenants in respect of the land in dispute in

earlier recovery proceedings relating to arrears of rent and

considering the fact that on the relevant date of coming into

force of the Act, viz., on 1st of March, 1974, the appellants

were in possession of the land in dispute, we have no

hesitation to hold that the continuous possession of the

appellants which was conclusively found by the Tribunal as

well as by the High Court and in view of the admitted fact

that the respondent had admitted in their deposition of an

earlier proceeding that the appellants were tenants in

respect of the land in dispute and the entries in the Record

of Rights clearly show that the appellants were in

possession of the land in dispute and the nature of

cultivation was gutha and further in the absence of any

material produced by the respondent to show that in fact 14

the appellants were not tenants in respect of the land in

dispute, we are of the view that there is no escape that the

appellants had acquired occupancy right in respect of the

land in dispute and their names shall be registered as

occupancy right holders in respect of the land in dispute. In

Siddawwa Kom Udochappa Vaddar (Supra), this Court,

while dealing with a case under the Act, observed as follows:

"The short question which falls for consideration is that on the relevant date, that is on 1.3.1974, when the Act came into force, as to who has been in possession of the land. If the first respondent has been in possession thereof and cultivating the same, necessarily, is entitled to registration of occupancy right. Since the appellant on the relevant date was not in possession thereof and the concurrent findings of the Tribunal, learned Single Judge and the Division Bench, we do not think there is any merit in this appeal which is accordingly dismissed."

A plain reading of this decision of this Court would clearly

show that if possession in respect of the land in dispute on

the relevant date was in favour of the appellants showing

them to be in cultivation and possession of the same are

entitled to registration of the occupancy rights in respect of

the land in dispute. A decision was cited by the learned 15

counsel for the respondent in the case of Damu Ganu

Bendale Vs Arvinda Dhondu Talekar & Ors. [1995 Supp.1

SCC 182] to show that this Court would not be entitled to

interfere with concurrent findings of facts based on

appreciation of evidence and, therefore, no error of law was

committed.

12. In our view, this decision on the face of it cannot be

applied in the facts and circumstances of the present case

because the aforesaid decision was rendered in a case which

was covered under the Bombay Tenancy and Agricultural

Lands Act, 1948. Furthermore, in the aforesaid decision, the

concurrent findings on the question of possession was not

in favour of the person who was claiming to get his name

registered as an occupancy right holder in respect of the

land in dispute, whereas in the present case, the concurrent

findings of fact on the question of possession by the High

Court as well as by the Land Tribunal stood in favour of the

appellants. At the risk of repetition, in the present case both

the Land Tribunal and the High Court held that the

appellants were in possession of the land in dispute and the 16

entries in the Record of Rights also stood in their names

showing that the nature of cultivation was gutha (rent) and

also the appellants were in possession of the same. As noted

herein earlier, the respondent had failed to produce any

document or material to show to the contrary. Therefore,

the onus was on the respondent to show by producing

material that the appellants had not acquired any status of

occupancy right although they were found to be in

continuous possession of the land in dispute. (See :

Gajadhar Prosad Singh & Ors. vs. Sheo Nandan Prosad

Singh & Ors. [ 23 CWN 304]. Since the respondent had

failed to produce any material or document to prove that the

appellants had not acquired any status in respect of the

land in dispute and had failed to show that the entries in

the Record of Rights were wrong, we do not find any ground

to reject the claim of the appellants for conferring status of

occupancy right holder in respect of the land in dispute. In

view of our discussions made hereinabove, we do not find

any support to rely on the decision of this Court in the case

of Jattu Ram Vs. Hakam Singh & Ors. [1993 (4) SCC 403] 17

that since the appellants had failed to prove their status of

tenancy in respect of the land in dispute, they were not

entitled to any relief. It is true that the entries in the

revenue record cannot create any title in respect of the land

in dispute, but it certainly reflects as to who was in

possession of the land in dispute on the date the name of

that person had been entered in the revenue record. That

apart, in that decision of this Court, on which reliance was

placed by the learned Counsel for the respondent, it was

admitted that the landlord did not receive any rent from the

person in possession. Relying on this admission of the

person from whom no rent was received, it was found that

the plea of tenancy was a false one. As noted herein earlier,

in the present case, not only the revenue records clearly

show that the appellants were in continuous possession of

the land in dispute, and the admission of the respondent

that the appellants were tenants in an earlier recovery

proceedings, and in the absence of any document having

been produced by the respondent to show that the entries in

the Record of Rights were wrong, it is not possible for us to 18

rely on the aforesaid decision cited by the learned counsel

for the respondent. So far as the decision of a learned Judge

of the Bombay High Court in the case of Rita Premchand &

Anr. Vs. State of Maharashtra & Ors. [2001 (4) MLJ 671]

is concerned, there is no dispute about the proposition

enunciated in the said decision which says that the entries

in the revenue records are not dispositive or conclusive on

questions of title and that the revenue record cannot create

any title and are relevant only for fiscal purposes. This

proposition is not disputed, nor can we dispute it. In view of

our discussions made hereinabove and accepting the

principles enunciated in the aforesaid decision of the

Bombay High Court we are of the view that the name of the

appellants should be registered as an occupancy right

holder in respect of the land in dispute. Accordingly, the

application of the appellants shall stand allowed and

consequent thereupon the orders of the Land Tribunal as

well as the Division Bench and the learned Single Judge of

the High Court shall stand set aside.

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13. For the reasons aforesaid, the appeals are allowed, the

impugned judgment of the High Court as well as the

judgments of the learned Single Judge and the Land

Tribunal stand set aside and the application for recording

names of the appellants as occupancy right holders in

respect of the land in dispute stands allowed. There will be

no order as to costs.

..............................J. [TARUN CHATTERJEE]

NEW DELHI: ..................... .........J. MARCH 19, 2009 [HARJIT SINGH BEDI]