Mere permission to surrender without delivery of possession by the tenant does not terminate the relationship of landlord and tenant.

( 1 ) THIS is a tenant's appeal from the order of Swami, J. , allowing the writ petition filed by the landlords who are respondents 3 and 4 herein and quashing the order of the Land tribunal, Hunsur, which had granted him occupancy rights in 2 acres of wet land in Sy. No. 298, Hussainpura Nala village, Hunsur Taluk.

( 2 ) THE relevant facts briefly stated are these; The appellant was the tenant of the land aforesaid since the time of the landlords' father, Siddappa, after the Karnataka Land Reforms act, 1961 (in short, 'the Act') came into force, he filed an application under s. 48a of the Act for grant of occupancy rights in that land. In his application (produced as Ex-C with the writ petition), he had clained tenancy of that land over a period of 25 years.

( 3 ) IN the statement of objections before the Land Tribunal, respondents 3 and 4 contended, inter alia, that the appellant was not the tenant of that land in view of his surrender thereof in accordance with the provisions of s. 25 of the Act, as it stood in the year 1969, that in terms of the order of the land Tribunal dated! 22-12-1969 (produced as. Ex B with the writ petition) made under that section, the appellant was neither in possession of the land nor cultivating the same and that after the death of Siddappa, father of the landlords herein, there was a partition of family properties in the year 1973 under which this land fell to the share of respondent-3 who has been cultivating it personally since then and up to the time of partition her brothers were cultivating it personally. The case of the appellant before the land Tribunal was that he never made any statement before the then Land tribunal tc the effect that he was surrendering that land nor did he get any notice from that Tribunal and that even assuming that there was an order of the Land Tribunal permitting surrender, he did not avail himself of such permission and surrender but continued to be in possession thereof as tenant paying Wara and levy. His plea regarding continuance of his tenancy as on on 1-3-1974, was fully corroborated by the evidence of the cultivators of adjacent tends. The landlords rested their case on the order of the Tribunal permitting surrender, the entries in the record of rights for the period of 1970 to 1977 and the oral evidence of shivappa, brother of respondent-3, nanjegowda, husband of respondent-3 and Revanna, also a relation.

( 4 ) THE Land Tribunal found that the appellant had not acted on the permission to surrender and delivered possession of the land to the landlords; that the cral evidence of the landlord's witnesses suffered from contradications; that it was not shown that the Tahsildar had delivered possession of the land from the appellant to the landlords and that the appellant's evidence duly corroborated by two ' adjacent landholders and the spot inspection demonstrably proved the appellant's possession as a tenant as on 1-3-1974. In that view, the Tribunal granted occupancy rights to the appellant.

( 5 ) AGGRIEVED by this order, the landlords contended inter alia before the learned single Judge that (1) the order of the Tahsildar (Ex-B) determined the relationship of landlord, and tenant between the appellant and respondent-3; (2) there was actual surrender by the appellant pursuant to Exhibit-B and even otherwise the appellant was a trespasser being a tenant at sufferance and therefore he was not a tenant entitled to occupancy rights; and (3) The finding of the Land Tribunal was vitiated by non-consideration of the presumption arising under Section 133 of the Karnataka Land Revenue act from the entries in the record of rights extract (Exhibit-J filed with the writ petition ). These contentions found favour with the learned single Judge and he allowed the petition of the landlords. Hence this tenant's appeal.

( 6 ) WE will first deal with contentions mas. 2 and 3 since they rest on the factual appreciation of the evidence on record On the question of