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2010 Supreme(Kar) 695
2010(6) Kar. L.J. 515 (DB)
IN THE HIGH COURT OF KARNATAKA AT BANGALORE (DIVISION BENCH)
Mrs. MANJULA CHELLUR AND B.S. PATIL, JJ.
CHIKKANNA BIN RAJEGOWDA (SINCE DECEASED) BY L.Rs
Versus
STATE OF KARNATAKA AND OTHERS
Writ Appeal Nos. 1629 and 1630 of 2010 (LR).
Decided on: 2nd July, 2010
Sri B.M. Krishna Bhat, Advocate for Appellants;
Sriyuths A.D. Vijaya, Additional Government Advocate and Sri K. Shashikiran Shetty, Advocate for Respondents.
Headnote:KARNATAKA LAND REFORMS ACT, 1961 - Section 48-A: [Manjula Chellur & B.S. Patil, JJ] Grant of occupancy right in favour of sub-tenants - Petitioners alleging that Respondent 3 to 9 are only trespassers; not in possession and sub-tenants of original tenants are not entitled - Single judge held that sub-tenants are also entitled to - Writ Appeal - Held, Section 21 of the Act, which prohibit sub-letting and assignment of lands. It is thus clear from the provision contained in Section 21 that, a bar is enacted for sub-letting the land held by any tenant except by a permanent tenant. Therefore, it is clear that, the prohibition for sub-letting the land is in existence since 02.10.1965. If that be so, unless it is established that the predecessor-in-title of the writ petitioners were permanent tenants of the lands in question, they could not have sub-let the lands after 02.10.1965. The facts as pleaded do not make the proviso to sub-section (1) of Section 21 applicable to the present case. In the instant case, the Tribunal has not gone into the question when the sub-tenancy was created in favour of respondent Nos.3 to 9. It has simply held that as respondent Nos.3 to 9 were found to be sub-tenants as on 01.03.1974 they were entitled for grant of occupancy rights. The Tribunal ought to have recorded a finding as to whether the sub-tenancy was created prior to 02.10.1965. In the absence of such a finding, the order passed by the Tribunal cannot be sustained. Order of Single Judge was set aside matter remitted to Land Tribunal for fresh consideration and disposal.
In these writ appeals, order dated 10-3-2000 passed by the learned Single Judge dismissing the writ petition filed by the appellants herein is challenged. In the writ petition, the appellants herein had challenged the order dated 19-5-2007 passed by the Land Tribunal, Srirangapatna. Insofar as it related to the grant of occupancy rights in favour of respondents 3 to 9 herein.
2. The dispute relates to Sy. Nos. 104, 118 and 126 of Channahalli Village of Srirangapatna Taluk. Deceased Chikkanna and Chamegowda, both sons of Rajegowda filed applications in Form 7 claiming occupancy rights as tenants in respect of these lands. Writ petitioners/appellants herein are the legal representatives of the said Chikkanna and Chamegowda. The Tribunal granted occupancy rights in respect of 1 acre 34 guntas in Sy. No. 104 and 26 guntas in Sy. No. 104/2 to the petitioners. Different portions of lands comprised in these three survey numbers were granted in favour of the predecessors-in-title of private respondents herein, which they had claimed. Aggrieved by the grant of occupancy rights in respect of different portions of land in favour of other private respondents, the writ petitioners/appellants herein filed the writ petition only to the extent of rejection of their claim.
3. The main contention urged in the writ petition was that the Land Tribunal committed an illegality in granting occupancy rights in favour of the respondents who claimed to be sub-tenants under the original tenants. It was contended that after 2-10-1965, no tenancy could have been created and as such the persons who claimed grant of occupancy as sub-tenants could not be regarded as lawful tenants entitling for confirmation of occupancy rights as per the provisions of the Karnataka Land Reforms Act, 1961 (for short, the 'Act'). It was contended that the so-called sub-tenants were only trespassers. It was also contended that respondents 3 to 9 were not at all in possession and cultivation of any portion of the lands in question.
4. The learned Single Judge has held that the minute scrutiny of the records made by him revealed that the names of Chikkanna, Rajegowda and Chamegowda (petitioners and their father) did not figure in column (12) of the record of rights, insofar as lands in Sy. Nos. 118 and 126 were concerned. As far as the land bearing Sy. No. 104, the learned Single Judge has held that the Tribunal-has totally granted 2 acres and 22 guntas of land to petitioners 1 and 2, whereas their names were found in respect of only 2 acres of land. The contention urged by the writ petitioners stating that respondents 3 to 9 were only trespassers was repelled holding that the combined reading of the provisions contained in Sections 45 and 49 of the Act, did not leave any doubt that even a sub-tenant was also entitled for grant of occupancy rights. The learned Single Judge found support for this view from the judgment in the case of Narasimha Jayadevarao v Land Tribunal, Sirsi Taluk, Uttara Kannada District and Others1. Thus, the contentions urged by the writ petitioners have been negatived.
5. Sri B.M. Krishna Bhat, learned Counsel for the appellants contends before us that as there was no sub-lease created prior to 2-10-1965, the Tribunal erred in granting occupancy rights holding that respondents 3 to 9 were the sub-tenants. He next contended that as per Section 5 of the Act, no tenancy could be created after 2-10-1965. It is his submission that even if it is assumed that the name of the respondents was found in the record of rights for the years 1971-72, they will not get any right to seek occupancy rights. In this regard, he has placed reliance on the judgments in the case of Bakilana Chinnappa v Land Tribunal, Mercara Taluk and Others2 and in the case of Beera Aayu Agera v Land Tribunal, Ankola, Uttara Kannada District and Others3. He has also placed reliance on the following judgments:
(i) Vimal Appayya Markal v The Land Tribunal, Belgaum and Others1;
(ii) Timmakka Kom V
