Back
1982 Supreme(Kar) 129
Karnataka High Court
M.BASAVARAJ - Appellant
Versus
STATE OF KARNATAKA - Respondent
Decided On : 06-22-82
W.P. : 26693 of 1981
INDRAJIT SHAH, K.PRABHAKARA REDDY, K.T.MOHAN
A son of a joint family is entitled to claim conferment of occupancy right by filing an application in the prescribed form.
Headnote:
Land Reforms Act - Conferment of Occupancy Right - S. 48a, S. 48c - The court quashed the order conferring occupancy right, remitted the matter to the Land Tribunal, and allowed the writ petition. The court held that a son of a joint family is entitled to claim conferment of occupancy right by filing an application in the prescribed form. The interim order made by the Court was not to continue after the disposal of the writ petition on merits.
Fact of the Case:
The writ petition challenged the order conferring occupancy right on the ground of lack of notice and being a non-speaking order. The daughter of the deceased landowner sold the property to the petitioner, who challenged the occupancy right conferred to the third respondent.
Finding of the Court:
The court quashed the impugned order, remitted the matter to the Land Tribunal, and allowed the writ petition. The court also held that a son of a joint family is entitled to claim conferment of occupancy right by filing an application in the prescribed form.
Issues: Challenge to the order conferring occupancy right, entitlement of a son to claim conferment of occupancy right, and continuation of interim order.
Ratio Decidendi: The court held that a son of a joint family is entitled to claim conferment of occupancy right by filing an application in the prescribed form. The interim order made by the Court was not to continue after the disposal of the writ petition on merits.
Final Decision: The writ petition was allowed, the impugned order was quashed, and the matter was remitted to the Land Tribunal for fresh disposal. The interim order made by the Court was not to continue after the disposal of the writ petition on merits.
( 1 ) THE order dt. 13 10-1981 made by the land Tribunal, Kolar, conferring occupancy right in favour of the third respondent is challenged in this writ petition on the ground that it is not a speaking order and also an order made without notice to the petitioner. After the demise of Kalyanamma, owner of the land, her daughter jayamma sold the property in favour of hayath Khan in the year 1975. The petitioner has purchased the property from hayath Khan.
( 2 ) SRI K. T. Mohan, learned counsel appearing for the contesting respondent, did not make serious attempt to sustain the impugned order and on the other hand, he rightly conceded that the impugned order not being a speaking order be quashed and the matter be remitted to the land Tribunal for fresh disposal according to law. In this view, there is no difficulty to allow the writ petition.
( 3 ) SRI Prabhakar, learned counsel appearing for the petitioner, submitted, without prejudice to his other contentions, that during the life time of Narayanappa, the third respondent as his son, could not claim conferment occupancy right and his application is liable to be rejected in view of the principles enunciated by this court in Jahirodin v. L. T. , Srinivasapur (1); hence there is no necessity to remit the matter to the Land Tribunal for fresh disposal according to law.
( 4 ) FOR proper appreciation of this contention it is necessary to refer to some salient provisions of the Land Reforms Act (hereinafter referred to as the 'act' ). As per the preamble of this Act, the Act intends to give effect to agrarian reforms, conferment of ownership on tenants, ceiling of land holdings and certain other matters referred to therein. " 'tenant' is defined to mean an agriculturist who cultivates personally the land he holds on lease from a landlord and includes. . "'family' means an individual who hass a pouse or spouses, such individual the spouse or spouses and their minor sons and unmarried daughters, if any. . . . (vide s 2 (12) of the Act ). 'joint family' means in the case of persons governed by Hindu law, an undivided Hindu family, and in the case of other persons, a group or unit the members of which are by custom joint in estate or residence (vide S. 2 (17) of the act ). 'to cultivate personally' means to cultivate land on one's own account- (i) by ones own labour or (ii) by the labour of any member of one's family or (iii ). . . . Expln. II. In the case of a joint family, the land shall be deemed to be cultivated personally, if it is cultivated by any member of such family. (Vide S. 2 (11) of the Act) (underlining (italics) is mine ). By S. 24 of the Act, the right of a tenant is heritable and also partible. All tenan ted lands vest with the Government (vide s. 44 ). S. 45 states every tenant who was a permanent tenant, protected tenant or other tenant is entitted to be registered as as an occupant in respect of the lands of which he was a tenant. S. 48a of the Act provides for procedure for holding an enquiry including filing of an application by a tenant.
( 5 ) RELYING on S. 48a which contemplates a tenant to file an application for conferment of occupancy right, an argument is advanced to the effect that the tenant alone can apply and none else. It is undisputed that a son is the member of the joint family. The question to be considered is what is the interest of a son in the leasehold right.
( 6 ) THE Supreme Court of India in municipal Corpn. of Greater, Bombay v. Balapunchani (2) has stated thus : a tenant has both under the Transfer of Property Act and under S. 12 of the bombay Rents Hotel and Lodging house Rates Control Act, 1947 an interest in the demised premises which squarely falls within the expression 'property' occurring in sub cl. (f) of Cl. (1) of Art. 19 of the Constitution. The leasehold right in an agricultural land, if it constitutes joint family property/joint property, is partible just like any other property of the joint family. The obje
