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PETITIONER: STATE OF KARNATAKA & ANR.

       Vs.

RESPONDENT: UPPEGOUDA & ORS ETC

DATE OF JUDGMENT:       24/09/1996

BENCH: K. RAMASWAMY, K. VENKATASWAMI, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      We have heard learned counsel for the appellant.      Though the respondents were served with notice, they do not appear either in person or through counsel.      These appeals  by special leave arise from the judgment of the  Division Bench  of the  Karnataka High Court made on June 20, 1977 in Writ Appeal Nos. 196A and 197 of 1977.      The admitted  facts are  that  Sy.No.16  admeasuring  2 acres and 30 gunthas of land of Mattighatta village belonged to respondent  No.2 (hereinafter called, the ’Land Holder’). Respondent No.l,  Puppegouda was  put in  possession of  the land from  the year 1950 as tenant under a lease for 5 years which was  extended from  time to time upto 1960. Renewal of lease deed  was executed  in 1960  for a further period of 5 years. The  Karnataka Tenancy  Act,  1961  came  into  force protecting the  tenancy rights. Land Reforms (Amendment) Act introducing Section  44 and other provisions came into force w.e.f. March 1. 1974 abolishing intermediary rights of land- holders and  conferment of permanent rights to the tiller of the soil,  i.e., tenant.  The land-holder became entitled to compensation payable under the Act.      The question  is: whether  the tenant was continuing in possession as on the date the land stood vested in the State Government so as to confer title on the tenant? A Full Bench of the  High Court  in Balesha  Ram Khot  &  Ors.  vs.  Land Tribunal, Chikodi  & Ors.  [1978(k) KLJ  116] had  held that "even if  the land  was not  in  actual  possession  of  the tenant, immediately  prior to  1st march,  1974  if  it  was tenanted land,  it vested  in the State Government. That the land could not be registered in favour of the tenant who was not in  actual possession  immediately prior  to 1st  March, 1974 was  not relevant  for  the  purpose  of  deciding  the question as  to whether  the land  stood vested in the State Government under Section 44 of the Act".      The tenant  who was  lawfully entitled to cultivate the land personally immediately prior to the commencement of the Amendment Act, but was wrongfully prevented from doing so is entitled to registration of occupant under Section 45 of the Act.      The Act  provides procedure  to recover possession from

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an unauthorised  occupant  by  a  person  entitled  to  such possession (Sections 41, 121 and 129). A tenant who has been wrongfully or  illegally prevented from cultivating the land may request  the land Tribunal to defer consideration of his application till  possession is  restored to  him and  if he recovers possession, he may ask the Tribunal to proceed with his application.      In this  case, in  view of  the fact  that  the  tenant continued in  possession of  the land  from January 30, 1950 upto 2nd  June, 1965  when the  Mysore Tenancy  Act  was  in force, it  protected  his  possession.  Sub-section  (2)  of Tenancy Act reads as under:      "Notwithstanding   any    agreement      usage or  law to  the contrary,  no      tenancy shall  be terminated before      the expiry  of  a  period  of  five      years   except   on   the   grounds      mentioned in Section 15.      Provided that  with the  consent of      the landlord  any  tenancy  may  be      terminated by  a tenant  before the      expiry of a period of five years by      surrendering  his   interest  as  a      tenant in favour of the landlord."      This Court  in a recent judgment in P.G. Eshwarappa vs. M.Rudrappa &  Ors.[JT 1996 (8) SC 171] held that ejection of a tenant  under a  decree obtained  prior to the coming into force of  the Karnataka Land Reforms Act, 1961 had come into force was illegal and that he was entitled to restitution of the possession  illegally taken  away from  him. It was held that on  the date  when the  Act had come into force and the tenant was  found  to  be  in  possession  of  the  land  by operation of  sub-section (1)  of Section  22, with  a  non- obstante clause,  the tenant  shall not  be evicted from the land held by him except on the grounds enumerated in clauses (a) to (e) of Section 22.      In this  case, the land holder has merely asserted that the tenant  had surrendered  the land and entries in revenue records were received in support thereof. It is easy to have the entries  made with  the assistance  of patwari  who  had exclusive custody  of the records. The object of the Tenancy Act is  to protect  the tenants  to remain in possession and enjoy it  subject to  compliance of  the provisions  of  the Tenancy Act. Contracted tenancy come to an end and statutory tenancy sets  in operation  and so  he would  be liable  for ejectment only on proved grounds of statutory contravention, the entries  of revenue  records are self serving. There was no order  of a competent authority of eviction of tenant for contravention of  the above  mentioned grounds. The proviso, though enables a landlord to obtain possession on surrender, it must be proved strictly, as several devices would be used to circumvent  the beneficial  provision and  illiteracy and ignorance of  the tenant  would be taken advantage of. There is no  proof of  eviction of  the tenant. The stand taken by the land-holder  is not supported by legal setting. The High Court committed grave error of low. Accordingly the judgment of the  High Court  is not  correct in  law and  stands  set aside.      The appeals are allowed with no order as to costs.