ITEM NO.1A                 COURT NO.10               SECTION IVA

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS

CIVIL APPEAL NO(s). 8334 OF 2002

V.G. SHANKARANARAYANA BHAT                           Appellant (s)

                     VERSUS

GIRIJA (D) BY LRS. & ANR.                            Respondent(s)

[HEARD BY HON'BLE TARUN CHATTERJEE AND HON'BLE V.S.SIRPURKAR, JJ.]

Date: 27/04/2009  This Appeal was called on for Judgment today.

For Appellant(s) Mr. Rajesh Mahale,Adv.

For Respondent(s) Mr. V.N. Raghupathy,Adv.                       

Mr. Sanjay R. Hegde ,Adv

Hon'ble  Mr.  Justice  V.S.Sirpurkar  pronounced  the  judgment  of  the  Bench comprising Hon'ble Mr. Justice Tarun Chatterjee and His Lordship.

For the reasons given in the Reportable judgment which is placed on the  File, the appeal is allowed.  However, in the circumstances, there would be no orders  as to the costs.

(Parveen Kr. Chawla) Court Master

( S.S.R.Krishna) Court Master

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8334 OF 2002

V.G. Shankaranarayana Bhat …. Appellant

Versus

Girija (D) by LRs. & Anr. …. Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. A  judgment  passed  by  the  Karnataka  High  Court  in  Land  Reforms  

Review Petition, dismissing the same, confirming the order passed by the Land  

Reforms Appellate Authority, which in turn had confirmed the order passed by the  

Land Tribunal, Bantwal, is in challenge in the present Appeal.  The said Revision  

was  filed  by the  present  appellants  as  the  legal  representatives  of  the  original  

landlord.   

2. One  Govinda  Bhat  owned  agricultural  lands,  which  were  leased  in  

favour of one Kariyappa Gowda in 50s.  Kariyappa Gowda cultivated the property  

as a tenant till his death.  He had two wives, first being Akki Hengsu and through  

her, a daughter namely Laxmi Hengsu, and, second being Kali Hengsu and one son  

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Jinnappa Gowda through her.  Admittedly, Kariyappa Gowda died in 1960.  At  

that  time,  his  daughter  Laxmi  was  already  married  and  was  living  with  her  

husband.   After  Kariyappa  Gowda  died,  the  property was  being  cultivated  by  

Jinnappa Gowda, with whom there was an agreement dated 5.11.1961 for tenancy.  

The total land, which was being cultivated was 2 acres 17 cents.  In the year 1962,  

Jinnappa Gowda surrendered major portion of this property by way of a Surrender  

Deed to the landlord.  Only the area of 1.6 acres was left with Jinnappa Gowda.  It  

has come on record that Jinnappa Gowda represented to the landlord that he was  

not  able  to  cultivate  the  land  for  over  3  years  and he  expressed  his  desire  to  

surrender the property.  Therefore, a petition was filed before the Munsif Court  

and  after  examining  the  parties,  an  order  came  to  be  passed  on  5.3.1968,  

permitting  Jinnappa  Gowda  to  surrender  the  lands  under  Section  4  of  Madras  

Cultivation and Tenant Protection Act, 1955.  So far so good.

3. Laxmi, the step sister of Jinnappa Gowda, however, filed a Civil Suit  

being  O.S.  63  of  1968  and  obtained  an  injunction  on  25.3.1968  against  the  

petitioner  (appellant  herein),  restraining the  appellant  from interfering with her  

possession.  An appeal was filed against the order, granting injunction vide appeal  

in M.A. 34 of 1968 on the file of Court of Civil Judge, Mangalore, which came to  

be  decided  by  the  Learned  Civil  Judge,  holding  that  Laxmi  could  not  be  

dispossessed.  As against that, Civil Revision Petition Nos. 1670 and 1671 of 1968  

were filed before the High Court.  The High Court, however, without going into  

the merits of the case, directed the Trial Court to dispose of the main suit itself  

without reversing the decision of the lower Court, which had passed the order on  

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merits.  After the order of remand, the matter remained pending before the Munsif,  

who on application, appointed Laxmi as the Receiver.  As against that order, the  

petitioner (appellant herein) preferred an appeal before the Court of Civil Judge,  

Mangalore,  who remanded the matter on 9.1.1976 to the Land Tribunal, as the  

Tribunal had then come into existence owing to the 1974 Act.  While the said suit  

was pending in the Court, Laxmi filed Form No. 7 application before the Land  

Tribunal, Bantwal in TNC No. 3216/74-75 against V.G. Shankaranarayana Bhat,  

who  had  succeeded  the  original  landlord  Govinda  Bhat,  who  had  expired,  for  

conferral of occupancy rights.  This suit was also transferred to the Land Tribunal,  

as  the  earlier  application  was  pending  for  declaration  and  also  for  grant  of  

occupancy right in respect of the land in question.   

4. The Land Tribunal, after enquiry, by its order dated 23.11.1984, rejected  

the  claim  of  the  first  respondent  herein,  however,  on  humanitarian  grounds,  

conferred the occupancy rights upon Laxmi in respect of the land bearing Survey  

No. 46/2 measuring 26 cents.  Her claim in respect of the remaining land was,  

however, rejected, that being Survey No. 43/2 measuring 80 cents.  The appellant  

herein filed a Writ Petition No. 10592 of 1985 before the High Court.  Laxmi also  

filed a Writ Petition being Writ petition No. 5104 of 1985 against the order dated  

23.11.1984.  Both the petitions were clubbed and the matter was remanded to the  

Land Reforms Appellate Authority.  During the pendency before Land Reforms  

Appellate  Authority,  Laxmi  died  and,  therefore,  present  respondent  Girija  was  

brought on record.  The Land Reforms Appellate Authority, by its  order dated  

14.12.1989, set aside the order passed by the Land Tribunal in respect of the 80  

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cents in Survey No. 43/2, as also the land bearing Survey No. 46/2 measuring 0.26  

cents,  which  land  was  conferred  upon  Laxmi  on  humanitarian  grounds  and  

conferred  occupancy rights  of  both  upon  Girija.   It  is  this  order,  which  was  

challenged before the High Court.  The High Court, however, confirmed the order  

of the Land Reforms Appellate Authority and that is how, the parties are before us.

5. Shri Krishna Moorthy, Learned Senior Counsel, appearing on behalf of  

the landlord (appellant) pointed out that the orders of the Land Tribunal, the Land  

Reforms Appellate Authority, as well as, the High Court are patently erroneous in  

law.  The Learned Senior Counsel pointed out that admittedly, Jinnappa Gowda  

was the original  tenant on the basis  of  an agreement dated 5.11.1961 with the  

original landlord Govinda Bhat after the death of Kariyappa Gowda.  The Learned  

Senior Counsel further pointed out that this status of Jinnappa Gowda was never in  

dispute.  He, therefore, pointed out that the High Court, as well as two authorities  

below, patently erred in holding Laxmi and after her, her daughter Girija to be the  

tenants.  In fact, the possession of Laxmi, if any, could never have been viewed as  

that of the tenant.  The Learned Senior Counsel pointed out that out of the original  

holding, the land excluding 1.6 acres was already surrendered and thereafter, even  

in  respect  of  that  land,  i.e.,  1.6  acres,  there  were  valid  surrender  proceedings,  

which  proceedings  were  never  challenged  by  Laxmi  and,  therefore,  the  Land  

Tribunal,  as  also  the  Land Reforms  Appellate  Authority were  in  total  error  in  

going into the correctness or otherwise of the said surrender and writing a finding  

that the said surrender was brought about by fraud.  The Learned Senior Counsel  

also pointed out that very strangely, Laxmi never joined Jinnappa Gowda as party  

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either before the Land Tribunal or even before the Civil Court,  where she had  

chosen to go for seeking injunction against the landlord nor had she filed the said  

proceedings on behalf of Jinnappa Gowda.  The Land Tribunal, as well as, the  

Land Reforms Appellate Authority also could not have proceeded to confer the  

tenancy rights upon Laxmi merely on the basis of some evidence that she was  

taking care of the agricultural lands in the absence of Jinnappa Gowda and further,  

without  hearing Jinnappa Gowda.   At  any rate,  the  orders  passed by the Land  

Tribunal, as well as, the Land Reforms Appellate Authority were suffering from  

jurisdictional error.

6. As  against  this,  the  Learned  Counsel  appearing  on  behalf  of  the  

respondents herein supported all the orders, contending that it was laxmi, who was  

throughout in possession and,  therefore,  she is  bound to be conferred with the  

occupancy rights.

7. On these rival pleadings, it is to be decided as to whether Laxmi could  

have been conferred with the occupancy rights.

8. The  legal  scenario  has  to  be  borne  in  mind before  we  approach  the  

question in any manner.  The Karnataka Land Reforms Act, 1961 being Act 10 of  

1962 came into force on 2.10.1965, i.e., the day, which was appointed by the State  

Government under Section 1(3) of the said Act.  This Act was amended from time  

to time by Act Nos. 14 of 1965, 38 of 1966, 5 of 1967, 11 of 1968, 6 of 1970, 4 of  

1972, 1 of 1974, 26 of 1974, 31 of 1974, 18 of 1976, 27 of 1976, 44 of 1976, 67 of  

1976, 12 of 1977, 23 of 1977, 1 of 1979, 2 of 1980, 3 of 1982, 1 of 1983, 35 of  

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1985, 19 of 1986, 18 of 1990, 1 of 1991, 31 of 1991, 9 of 1992, 31 of 1995, 8 of  

1996, 23 of 1998 & 34 of 1998 and the amendments were brought in by these  

aforementioned Acts.  Before this Act came on the anvil, admittedly, parties were  

being  governed  by Madras  Cultivation  and  Tenant  Protection  Act,  1955.   By  

Section 142 of the 1961 Act, Madras Cultivation and Tenant Protection Act, 1955,  

as  well  as,  the  Madras  Cultivating  Tenants  (Payment  of  Fair  Rent)  Act,  1956  

repealed along with all other Acts like Bombay Tenancy Act, Hyderabad Tenancy  

Act, Mysore Tenancy Act etc.  Kariyaapa Gowda was, therefore, a tenant under the  

provisions  of  Madras  Cultivation  and  Tenant  Protection  Act,  1955.   After  his  

death, Jinnappa Gowda also became a tenant as per the agreement dated 5.11.1961  

in between Jinnappa and the landlord Govinda Bhat.  The surrender of tenancy,  

which took place on 5.3.1968 in between Jinnappa and Govinda Bhat was under  

the provisions of the Karnataka Land Reforms Act, 1961, since that Act had come  

on the anvil.  The said surrender took place under Section 25 of that Act, as it  

existed in the year 1968.  This Section has undergone a sea change, but we are not  

concerned with that change.   

9. It  is  an admitted case that  the said surrender took place on 5.3.1968  

before  the  Munsif,  Bantwal.   It  is  further  an  admitted  case  that  Jinnappa  had  

executed  a  rent  note  in  favour  of  the  landlord on  5.11.1961.   Now,  the  order  

passed, certifying the surrender of Jinnappa has never been challenged either by  

Laxmi or by Girija or for that matter, anybody and that order has remained intact.  

It is also an admitted case that after 5.11.1961, i.e., after the execution of rent note,  

it was Jinnappa, who was in cultivation of the land throughout.  However, when  

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Laxmi asserted her right for the first time by way of a Civil Suit before Munsif,  

she claimed to be the direct tenant after Kariyappa Gowda.  This was not possible  

because it is nobody’s case that  (1) Kariyappa Gowda had taken the tenancy on  

behalf of the whole family and   (2) after him, the tenancy was inherited by Laxmi.  

If at all it was a heritable tenancy, then it would have been inherited by both Laxmi  

and Jinnappa Gowda.  Instead, Laxmi claimed to be the sole tenant in respect of  

the whole property in the Civil Suit and very strangely, she got the injunction,  

which injunction dispute went right up to the High Court and which injunction  

dispute came in the lap of the Land Tribunal on account of the fact that by that  

time, the Tribunal had come into existence due to the passing of Karnataka Land  

Reforms  Act,  1961.     Unfortunately,  the  Land  Tribunal,  the  Land  Reforms  

Appellate Authority and the High Court have missed all these important factors.  

In its original order, the Land Tribunal has gone to the extent of rejecting the claim  

of  Laxmi  in  respect  of  the  major  chunk  of  land  of  80  cents  and  it  also  very  

strangely conferred the occupancy rights in respect of 26 cents of Laxmi, when  

Laxmi had no rights,  whatsoever,  and could not have been conferred  with the  

rights  on  so-called  humanitarian  grounds.   That  order  was  clearly  incorrect.  

However, it was correct insofar as the remaining land of 80 cents is concerned.   

10. We have  very carefully  seen  the  order  passed  by the  Land  Reforms  

Appellate Authority, though the original  order of the Land Tribunal was never  

made available to us.  In our opinion, the Land Tribunal had correctly come to the  

conclusion that Laxmi had come into possession only on the strength of injunction  

granted by the Munsif Court.  The Land Reforms Appellate Authority went on to  

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comment that the Land Tribunal had not taken into consideration the relationship  

between  Jinnappa  Gowda  and  the  appellant  and  the  evidence  adduced  by  the  

appellant to prove that they were cultivating the disputed lands.  In our opinion,  

even if all the letters are read in favour of Laxmi, still then, at the most, Laxmi’s  

possession would be that of on behalf of Jinnappa Gowda.  She cannot be said to  

be independently in possession of the concerned land, muchless in her capacity as  

a tenant.  This fact has been completely missed by the Land Reforms Appellate  

Authority.  The Land Reforms Appellate Authority again nowhere has considered  

the  effect  of  surrender  and  the  order  dated  5.3.1968  remaining  unchallenged  

throughout.  That is another circumstance against Laxmi and, therefore, against her  

daughter Girija.

11. Again, the further circumstance that Jinnappa Gowda’s status was that of  

the tenant on the basis of a rent note dated 5.11.1961 has been totally missed by  

the Land Reforms Appellate Authority, which was in fact correctly appreciated by  

the Land Tribunal.  Jinnappa Gowda’s this status of tenant was surrendered by him  

finally  on  order  dated  5.3.1968  from  the  Land  Tribunal  and  that  order  has  

remained intact till today.

12. Very strangely, the Land Reforms Appellate Authority has gone into the  

correctness  of  the  order  dated  5.3.1968  passed  by the  Tribunal,  accepting  the  

surrender  and  registering  the  surrender.   We  fail  to  see  as  to  how  the  Land  

Reforms Appellate  Authority could even have gone into the correctness of  the  

order dated 5.3.1968.  Nobody challenged the same, including Laxmi.  The Land  

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Reforms  Appellate  Authority  has  also  drifted  into  imagination  in  describing  

Jinnappa Gowda as a man, who was not wordly wise.  The finding that Jinnappa  

was a man of low intelligence and, therefore, he surrendered the land, also appears  

to  be  a  wholly  incorrect  finding  based  on  no  evidence.   The  Land  Reforms  

Appellate Authority has gone to the extent of saying, mentioning in para 22 of its  

order, that Jinnappa was mentally unsound as per the appellant and that there was  

no doubt that Jinnappa was a puppet in the hands of the opponents and he has  

assigned his signatures as directed by the opponent and in this way he has executed  

documents as required by the opponents.  All this has no basis, whatsoever.  It  

cannot be forgotten that the surrender was done before a judicial authority as per  

the provisions of the Act and that surrender remained intact till today.  In para 23,  

the Land Reforms Appellate Authority has also given a very strange finding that  

the  land  was  tenanted  to  an  undivided  family  and,  therefore,  all  the  family  

members  had  to  jointly surrender  the  land and it  was  not  permissible  for  one  

member of the family to surrender the land.  In this, the Land Reforms Appellate  

Authority has completely ignored the fact that on 5.11.1961, i.e., after Kariyappa’s  

death, there was an independent rent note, creating the tenancy in Jinnappa Gowda  

alone.  The Land Reforms Appellate Authority has then further imagined that the  

rent note was executed by Jinnappa Gowda for the benefit of his family members  

and not in his individual capacity.  We fail to follow as to wherefrom, the Land  

Reforms  Appellate  Authority  has  brought  all  these  facts.   Again,  we  are  

constrained  to  hold  that  the  finding  given  by  the  Land  Reforms  Appellate  

Authority that the surrender was illegal, has no basis.  Therefore, obviously, the  

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order of the Land Reforms Appellate Authority was totally incorrect.   

13. Very unfortunately, the High Court also failed to see through all these  

illegalities, though the High Court has mentioned in its judgment, the factum of the  

surrender dated 5.3.1968 (wrongly under Section 4 of the Madras Cultivation and  

Tenant Protection Act, 1955).  In fact, this surrender was not under Section 4, but  

should have been under Section 25 of  the Karnataka Land Reforms Act,  1961  

because  by  then,  the  Land  Reforms  Act  had  come  on  the  legal  anvil.  

Unfortunately,  the  High Court  has  also  fallen  in  error  in  going  on the  factual  

aspects  of  the  matter  to  the  effect  that  Jinnappa  Gowda used  to  go  away for  

working and Laxmi used to look after the cultivation.  Even if that was true, that  

could not ripen into any rights into Laxmi, much less the tenancy rights.  The High  

Court has also gone on to comment on the unchallenged order dated 5.3.1968,  

which undoubtedly, had the effect of bringing the tenancy into end.  At any rate,  

that order could not have been commented upon, particularly, when it was passed  

by Munsif  and  particularly,  it  was  not  in  challenge  in  the  High Court  in  any  

manner.  The High Court has also very strangely written a finding that the money  

orders sent to the landlord were on the instructions of Laxmi and Jinnappa Gowda.  

In fact,  the evidence of Seetharam Rai was clear that Jinnappa Gowda used to  

instruct him.  If Jinnappa Gowda was in a position to instruct the lawyer, he could  

be said to be a man of low intelligence or a man of having no mental faculties, as  

was tried to be shown by Laxmi.  The High Court in para 14 of its judgment, has  

actually approved of the wrong finding in appeal, examining the order of surrender  

without there being any jurisdiction of the same.  That is wholly incorrect.  In our  

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opinion, even if the finding arrived at by the High Court in para 16 of its judgment  

that Laxmi was cultivating the property is justified, that is not sufficient to confer  

upon her  right  of  a  tenant  as  her  possession  was  not  that  of  a  tenant.   Some  

imaginary statements had been made to the effect that this fact must be within the  

knowledge of the petitioner (appellant herein).  The High Court has also fallen into  

error in holding that Kariyappa Gowda had taken the property on lease and after  

his death, Jinnappa was cultivating the property on behalf of the family members.  

We do not find any support to this strange finding in the record, at least Learned  

Counsel for the respondents was not able to justify this finding in any manner.  

Again, the High Court has fallen into total error in holding that the surrender order  

passed by the Court without Laxmi being impleaded is a nullity in the eye of law.  

It has absolutely no basis.   The High Court was not called upon to decide the  

correctness of the surrender order.   

14. From all this, it is clear that all the orders of the authorities are totally  

incorrect and would have to be set aside.  It is, therefore, declared that Laxmi and  

thereafter,  her daughter Girija do not have any rights and could not have been  

given the status of occupancy tenants.   The appeal succeeds.   However,  in the  

circumstances, there would be no orders as to the costs.

………………………………..J. (Tarun Chatterjee)

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………………………………..J. (V.S. Sirpurkar)

New Delhi; April 27, 2009.  

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