2009 Supreme(Kar) 364

2010 (1) KCCR 37 (DB)
KARNATAKA HIGH COURT
N. Kumar and B. Sreenivase Gowda, JJ
Sri Ni Pra Channabasava Deshikendra Swamigalu Matadhipathigalu, Kodagu District Appellant
Versus
C.P. Kaveeramma and Others Respondents
Writ Appeal No. 1936 of 2005 (LR) connected with Writ Appeal Nos. 1941 of 2005, 1946 of 2005 and 2202 of 2005 (LR),
Decided on :15.6.2009

Headnote:KARNATAKA CERTAIN INAMS ABOLITION ACT, 1977 - Section 41: [N. Kumar & B. Sreenivase Gowda,JJ] Procedure for taking possession under - Inamdar who has been granted occupancy rights invoking the provisions of Section 41 - Occupancy rights granted to an Inamdar under the Inam Abolition Act -Inamdar invoking the provisions of Section 41 of the Land Reforms Act to recover possession from a person who is not a tenant of the land - An Order of eviction passed by the Tahsildar - Challenge to - Order of remand passed by the Single Judge - Appealed against - Held, Sub-Section (1) of Section 41 enables a tenant, who is entitled to possession under any of the provisions of the Act to recover possession of the land if he is dispossessed by the landlord in contravention of sub-Section (2) of Section 41. Therefore, the provision is meant only to a tenant and not to the landlord. In so far as sub-Section (2) is concerned, a right is conferred on a land lord to recover possession, held by a tenant. The condition precedent is the land should be held by a tenant, not by any other person. Therefore, the condition precedent for application of Section 41 of the Act is, that there should be the existence of jural relationship of landlord and tenant or agricultural labourer and landlord between the parties. It provides for both tenant and landlord to make an application for taking possession. Further, When the occupancy rights are conferred in respect of an inam land on an inamdar or a landlord, merely because Section 126 of the Act is made applicable to such landlords, it does not mean occupant under the Inams Abolition Act in whose favour the occupancy rights are granted would become a tenant. An inamdar who has been granted occupancy rights under the Inam Abolition Act if at all can make an application under sub-Section (2) of Section 41 of the Act against his tenant of the inam land. But such an application is not contemplated against a person other than a tenant. Therefore, Section 41 cannot be invoked by an Inamdar who is granted occupancy rights of an inam land under the Inams Abolition Act, against a mortgagee in possession of inam land prior to vesting of the land in the Government.

       KARNATAKA LAND REFORMS ACT, 1961 - Section 130: [N.Kumar & B.Sreenivase Gowda,JJ] Summary Eviction - Powers of the Tahsildar under - Procedure to be followed - Jurisdiction of the ’Tahsildar’ to entertain an application under Section 41 of the Act - Held, The provision of Section 130 can be invoked by the Tahsildar to evict any person unauthorisedly occupying or wrongfully in possession of any land, the transfer or acquisition of which either by the act of parties or by the operation of law, is invalid under the provisions of this Act or to the use and occupation of which he is not entitled to under the provisions of this Act and the said provision will not provide for the manner of eviction of such person. That is an enabling provision to the Tahsildar to evict persons, who are in unauthorised occupation or wrongfully in possession or were not entitled to put in possession of a Government land and the Tahsildar has been vested with the power to summarily evict such person, take possession of the land as he deems fit. The said provision does not confer any right on the landlord or tenant to seek eviction. When a legislation has specifically provided Section 41 under the Act, Section 130 is not available to them. Both these Sections operate in different spheres. Further, The appellants are not the tenants of the land in question. They were inamdars of the land and under the Inam Abolition Act occupancy right has been granted to them. The Land Reforms Act is meant only for a tiller of the land or tenant and therefore those provisions cannot be so interpreted to secure possession to inamdar under the Iam Abolition Act. The appellant had not made any application under Section 130 of the Act. The said provision is not attracted to the facts of the case. On the contrary, proceedings were initiated under Section 41 of the Act, by filing a prescribed application in Form No. 5. In that view of the matter, that the application filed by the appellant under Section 41 was not maintainable. The Tahsildar had no jurisdiction to entertain the application much less pass the impugned order and therefore on this ground alone the impugned order is liable to be quashed, and consequently the order of the Single Judge, remanding the case to the Tahsildar for fresh consideration is also unsustainable. On facts held, The way the Tahsildar has conducted himself and has passed the impugned order and the way the possession is said to have been taken, clearly demonstrates a clear case of abuse of the process of law, fabrication of records as well as interpolation of the judicial proceedings. Therefore, even on merits, the impugned order cannot stand the judicial scrutiny and the Single Judge has rightly set aside the same. Consequently, the application in Form No. 5 filed under Section 41 of the Karnataka Land Reforms Act 1961 by the appellants is hereby rejected as not maintainable.