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CASE NO.: Appeal (civil) 2953  of  1997

PETITIONER: S. VENKATAPPA

       Vs.

RESPONDENT: NARAYANAPPA & ORS.

DATE OF JUDGMENT:       25/04/2001

BENCH: Syed Shah Mohammed Quadri & S.N. Variava

JUDGMENT:

S. N. VARIAVA, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   This  Appeal is against an Order dated 7th August, 1996. Briefly stated the facts are as follows:

   Prior  to 1971 one Smt.  Muniyamma was the owner of  the concerned  land.  She sold the said land to one Shri G.   M. Munivenkate  Gowda  in 1971.  The Appellant signed the  Sale Deed as an Attestor.

   On  1st  March, 1974 the Karnataka Land Reforms  Act  of 1961  was  amended.   Original  Sections   44  and  45  were substituted.   Section  44 and the relevant portions of  the substituted Section 45 read as follows:

   "44.   Vesting of land in the State Government.- (1) All lands  held  by or in the possession of  tenants  (including tenants  against  whom a decree or order for eviction  or  a certificate  for  resumption is made or issued)  immediately prior  to  the  date of commencement of the  Amendment  Act, other  than lands held by them under leases permitted  under Section  5,  shall, with effect on and from the  said  date, stand transferred to and vest in the State Government.

   (2)  Notwithstanding anything in any decree or order  of or certificate issued by any court or authority directing or specifying  the  lands  which  may  be  resumed  or  in  any contract,  grant or other instrument or in any other law for the time being in force, with effect on and from the date of vesting and save as otherwise expressly provided in the Act, the following consequences shall ensue, namely:-

   (a) all rights, title and interest vesting in the owners of  such  lands and other persons interested in  such  lands shall cease and be vested absolutely in the State Government free from all encumbrances;

   (b)  [x x x x x] amounts in respect of such lands  which become  due on or after the date of vesting shall be payable to the State Government and not to the land owner, landlord,

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or any other person and any payment made in contravention of this clause shall not be valid;

   (c)  all arrears of land revenue, cesses, water rate  or other  dues remaining lawfully due on the date of vesting in respect  of such lands shall after such date continue to  be recoverable from the land-owner, landlord or other person by whom  they  were payable and may, without prejudice  to  any other  mode of recovery, be realised by the deduction of the amount of such arrears from the amount payable to any person under this Chapter;

   (d)  no  such  lands shall be liable  to  attachment  in execution  of  any decree or other process of any court  and any attachment existing on the date of vesting and any order for  attachment  passed before such date in respect of  such lands shall cease to be in force;

   (e)  the  State  Government   may,  after  removing  any obstruction  which may be offered, forthwith take possession of such lands:

   Provided  that the State Government shall not dispossess any  person  of any land in respect of which  it  considers, after  such  enquiry as may be prescribed, that he is  prima facie  entitled  to be registered as an occupant under  this Chapter.

   (f) the land-owner, landlord and every person interested in the land whose rights have vested in the State Government under  clause  (a),  shall be entitled only to  receive  the amount  from  the  State  Government  as  provided  in  this Chapter;

   (g)  permanent  tenants,  protected  tenants  and  other tenants  holding  such  lands shall, as  against  the  State Government,  be  entitled only to such rights or  privileges and  shall be subject to such conditions as are provided  by or  under  this  Act;  and any other rights  and  privileges which may have accrued to them in such lands before the date of  vesting against the landlord or other person shall cease and determine and shall not be enforceable against the State Government.

   45.   Tenants  to be registered as occupants of land  on certain  conditions.-  (I) Subject to the provisions of  the succeeding  sections of this Chapter, every person who was a permanent  tenant, protected tenant or other tenant or where a  tenant  has lawfully sub-let, such sub-tenant shall  with effect  on  and from the date of vesting be entitled  to  be registered  as an occupant in respect of the lands of  which he  was a permanent tenant, protected tenant or other tenant or  sub-tenant  before the date of vesting and which he  has been cultivating personally.

(2)     xxx     xxx     xxx

(3)     xxx     xxx     xxx "

   On 7th January, 1976 Sri Munivenkate Gowda sold the land to  Respondents  1 and 2.  This Sale Deed is also signed  by the Appellant as an Attestor.

   On  29th August, 1976 the Appellant made an  Application

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in  Form  No.   7  claiming   occupancy  rights  under   the provisions  of amended Sections 44 and 45.  The  Respondents filed  their  objections.  On 10th December, 1981  the  Land Tribunal  rejected  the application of the  Appellant.   The Appellant  then filed a Writ Petition in the High Court.  By an Order dated 11th March, 1983 the High Court set aside the Order  of the Land Tribunal and remitted the matter back for fresh enquiry.

   On  remand  the Land Tribunal took additional  oral  and documentary  evidence  and,  by an Order dated  27th  March, 1987,  held that the Appellant was the tenant of the land on the  appointed day i.e.  1st March, 1974 and prior to  that. The  Land  Tribunal  thus granted occupancy  rights  to  the Appellant.

   Respondents  1  and  2 filed an Appeal before  the  Land Reforms Appellate Authority, Kolar.  The Appellate Authority also  took further evidence and documents on record and held that the Appellant was a tenant of the land on the appointed day,  i.e.  1st March, 1974 and prior to that and  confirmed the  Order  granted occupancy rights to the Appellant.   The Appellate  Authority thus dismissed the Appeal on 4th April, 1990.

   Respondents  1  and 2 then filed a Writ Petition in  the High  Court which has been allowed by the High Court by  the impugned Order dated 7th August, 1996.

   Before   the   question  involved  is   taken   up   for consideratin  certain other provisions of the Karnataka Land Reforms  Act  need  to be noted.  Section  2(34)  defines  a tenant as follows:

   "2(34).  "Tenant" means an agriculturist [who cultivates personally  the land he holds on lease] from a landlord  and includes-

   (i)  a person who is deemed to be a tenant under Section 4;

   (ii)  a person who was protected from eviction from  any land  by  the Karnataka Tenants (Temporary  Protection  from Eviction) Act, 1961;

   (ii-a)  a  person who cultivates personally any land  on lease  under  a lease created contrary to the provisions  of Section  5  and  before  the date  of  commencement  of  the Amendment Act;

   (iii) a person who is a permanent tenant;  and

   (iv)    a person who is a protected tenant."

   Section  4  provides that a person lawfully  cultivating any land belonging to another person shall be deemed to be a deemed  tenant,  provided  (a) the land  is  not  cultivated personally  by the owner (b) if such person was not a member of  the owner’s family, or (c) a servant or a hired labourer or wages.

   Sections  2(11) and 2(12) are also relevant.  They  read as follows:

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   "2(11) "To cultivate personally" means to cultivate land on one’s own account-

   (i) by one’s own labour;  or

   (ii) by the labour of any member of one’s family or;

   (iii) by hired labour or by servants on wages payable in cash  or  kind,  but not in crop share, under  the  personal supervision of oneself or by member of one’s family;

   2(12)  "Family" means,

   (a)  in  the case of an individual who has a  spouse  or spouses,  such  individual, the spouse or spouses and  their minor sons and unmarried daughters, if any;

   (b) in the case of an individual who has no spouse, such individual  and  his  or  her   minor  sons  and   unmarried daughters;

   (c)  in  the  case of an individual who  is  a  divorced person  and  who has not remarried, such individual and  his minor  sons and unmarried daughters, whether in his  custody or not;  and

   (d)  where an individual and his or her spouse are  both dead, their minor sons and unmarried daughters;"

   In support of his claim Appellant had relied upon R.T.C. record  of  rights and tenancy and Pahani for the  concerned area.   This showed that from 1965 to 1970 the Appellant was cultivating  the land as "Wara" i.e.  a tenant.  This record also  showed  Muniyamma  as self cultivator  for  the  years 1970-71.   It  could  not be disputed that  no  enquiry,  as contemplated  under  the Act, had taken place before such  a change  was made in the records.  The record again shows  in 1973-74  and  1974-75  the name of the Appellant  but  as  a "Swantha",  i.e.   a  cultivator.    Apart  from  these  the Appellant  gave  oral  evidence of his own  tenancy  firstly under  one  Sri  Narayanappa,  who   was  the  owner  before Muniyamma,  then  under  Muniyamma   and  thereafter   under Munivenkate  Gowda.   Munivenkate Gowda also gave  evidence. He  confirmed that the Appellant was a tenant under him  and had been paying him rent by giving a share in the crop.  The Appellant and Munivenkate Gowda proved certain rent receipts for the period 1972 to 1975.  Munivenkate Gowda accepted the fact  that  he had received the rent and that he had  issued those  rent receipts.  Thus the Revenue Records showed  that the  Appellant  as a tenant from 1965 to 1970.   Thereafter, the Revenue Records showed during the years 1972 to 1974 the name  of the Appellant as a self cultivator.  Admitted  that entry  would be wrong because during this period Munivenkate Gowda  was  the  owner of the land.  The  entries  show  the presence of the Appellant on the land as a tenant upto 1970. The  evidence  of  Munivenkate Gowda  establishes  that  the Appellant was a tenant till 1975.

   On  the  above evidence, oral and documentary  both  the Land Tribunal as well as the Appellate Authority had, on the material  before them, held that the Appellant was a  tenant of the land on the appointed day i.e.  1st March, 1974.

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   The  High Court, however, upset the concurrent  findings of  fact, in its revisional jurisdiction, only on the  basis that  the  Sale Agreements of 1971 i.e.  from  Muniyamma  to Munivenkate  Gowda  and in the Sale Agreement of  1976  i.e. from  Munivenkate  Gowda  to  Respondents 1 and  2,  it  was mentioned  that  vacant  possession had been  given  to  the purchasers  and  that  the Appellant had attested  both  the Agreements.   The  High Court also relied,  without  further proof,  on  the statement in both the Sale  Agreements  that Appellant  was the grandson of Muniyamma.  Only on the basis of   the  averments  in  the   Sale  Deeds  the  High  Court disbelieved  the Revenue Records, even though they raised  a presumption  that what was stated thereon was correct.   The High  Court  disbelieved the oral testimony and the  Revenue Records  only on basis of statements in the sale Agreements. In  our  view  the  reasoning of the High  Court  cannot  be sustained  at all.  Sale Agreements between private  parties may   contain  any  averments.    Those  averments  have  no presumptive  value.   The  facts stated therein have  to  be proved.   Respondents  1  and 2 had tendered no  further  or other  evidence  of the relevant period.  They  tendered  no evidence which rebutted the presumption which arose from the Revenue  Records.   The  testimony  of  the  Appellant   and Munivenkate  Gowda was believed by the Trial Court which had the  advantage  of  seeing the demeanor  of  the  witnesses. Their  testimony  was supported by Revenue Records and  rent receipts.   The first Appellant Court had also accepted that evidence.   Without any justification, the High Court  chose to disbelieve that evidence.  From the statements in the two Agreements  the High Court presumed that Appellant could not be  a  tenant  as he was grandson of  Muniyamma.   This  was entirely  erroneous.   Even if Appellant was a grandson,  he could  still be a tenant as he is not a member of the family of  Muniyamma  within  the meaning of the  term  in  Section 2(12).   Also  cultivation by Appellant would not amount  to Muniyamma having cultivated personally within the definition under Section 2(11).  The two Agreements do not mention that there is no tenant on the land.

   In  our view, the impugned Judgment cannot be  sustained and  is  accordingly  set  aside.  The Orders  of  the  Land Tribunal  and  the first Appellate Court are restored.   The Appeal  stands  disposed of accordingly.  There will  be  no Order as to costs.