Narasamma and Ors. Vs.
State of Karnataka and Ors. [2009] INSC 566 (19 March 2009)
Judgment
REPORTABLE IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos. 568-571
OF 2005 Narasamma & Ors. ....Appellants VERSUS State of Karnataka &
Ors. ....Respondent
TARUN CHATTERJEE,J.
1.
One
Lingachari sold land measuring about 6 Acres 7 Guntas in Serial No. 55 within
Gulakamale, Uttarahalli, Hobli, Bangalore, South Taluk, Karnataka, (hereinafter
referred to as "the land in dispute"), to one Muniyappa, the father
of the appellants, in the year 1954. In 1960, the father of the appellants,
Muniyappa sold the land in dispute in favour of one Ashwathaiah who in 2 turn
sold it to one P. Ramaiah, who also in his turn sold the land in dispute to Rama
Reddy, the respondent herein. On or about 1960-61, the respondent, created a
tenancy right in favour of the father of the appellants in lieu of share of
crop for two years. The Record of Rights was published in the year 1969 which
recorded the appellants as tenants and the respondent as landlord relating to
the land in dispute. The Record of Rights further recorded that the type of
cultivation was Gutha (Rent). The respondent, who was the landlord in respect
of the land in dispute, in the year 1971, filed an application for recovery of
rent against the appellants before the Additional Munsif, Bangalore in Rent
Recovery Case No.114 of 1971. An order was passed in favour of the respondent
on 29th of June, 1972 directing payment of arrears of rent in the aforesaid recovery
case. The Karnataka Land Reforms Act, 1961 (in short, "the Act") was
amended on 1st of March, 1974 and Sections 44, 45 and 48A of the Act entitled
all agricultural tenants to apply under Form 7 for confirmation of ownership.
In view of the above, Muniyappa, the father of the appellants, filed Form No.7
to register him as an occupant in respect of the land in dispute before the
Land Tribunal under the Act. Muniyappa died on 3rd of October, 1976 during the
pendency of the said application.
In 1977, the
appellants filed a fresh Form No.7. By an order dated 24th of July, 1979, the
Land Tribunal disposed of the application filed by the appellants after, inter
alia, making the following findings:-
(i) Muniyappa, the
father of the appellants, cultivated the land for two decades;
(ii) Adjacent land owners
deposed that the land in dispute was in possession and cultivation of the
appellants on lease basis.
(iii) The names of
the appellants in respect of the land in dispute were recorded in the Record of
Rights for the years 1973-74 as cultivators also on lease basis.
(iv) The
respondent-landlord admitted factum of tenancy by claiming rent for the period
from 1966-72 by filing an application for recovery of arrears of rent for the
years 1966-72 in respect of the land in dispute in RRC Case No. 114/71 wherein
an order was passed on 29th of June, 1972 decreeing the case for payment of
arrears of rent;
(v) The appellants
were entitled to inherit the tenancy rights and, therefore, 5 entitled to be registered
as occupants in respect of the land in dispute.
(vi) The tribunal
also recorded that the appellants had made out a prima facie case so far as
their possession and cultivation of the land in dispute as tenants, were
concerned.
2.
In
spite of the aforesaid findings, the Land Tribunal rejected the application of
the appellants simply on the ground that since the tenants were claiming the
land in dispute as their own, they had not established their tenancy rights.
Feeling aggrieved by the aforesaid order of the Land Tribunal, a writ petition
was moved at the instance of the appellants before the High Court which by its
order dated 5th of February, 1985 remanded the case back for fresh disposal
after setting aside the said order for reconsideration of the said application
after re-assessing the entire oral and documentary evidence on record. This
order of the High Court was, however, not challenged either by the appellants
or by the respondent.
3.
After
remand, the Land Tribunal again by its order dated 12th of June, 2002 rejected
the application of the appellants and directed the Tehsildar to take further
action, inter alia, on the grounds that :- (i) Entries in the Record of Rights
relating to the land in dispute were forged ;
(ii) No co-relationship
existed between the Rent Recovery Proceeding and the tenancy proceedings.
4.
Feeling
aggrieved by the aforesaid order of the Land Tribunal, a writ petition was
filed in the High Court which was disposed of on 6th of June, 2003 by an order
in which the learned Single Judge of the High Court had come to the conclusion
that the appellants were in possession of the land in dispute. However, it was
held by the High Court that the appellants must produce some materials to show
that the appellants had acquired tenancy rights in respect of the land in
dispute without considering the findings of the 7 Rent Recovery proceedings
and admission of the respondent on the question of possession and tenancy of
the appellants in respect of the same. In appeal, the Division Bench of the
High Court also confirmed the order of the learned Single Judge after making,
inter alia, the following observations:- "The appellants-petitioners have
not been able to show that they were in possession of the land and the learned
Single Judge on consideration found that in the absence of any material
produced before the Tribunal, the petitioners cannot take advantage to get the
tenancy rights in their favour, though they may be in possession. The learned
Single Judge observed that mere possession does not indicate the status and
therefore held that the Tribunal was justified in rejecting their request as
they have failed to prove their tenancy."
A reading of this
finding of the Division Bench of the High Court would only lead us to hold that
the findings arrived at on the question of possession of the appellants
relating to the land in dispute were contradictory. At one place, the Division
Bench observed that the appellants could not show that they were in possession
of the land in dispute and in another place the Division Bench observed that
they may be in possession, but such possession cannot lead the court to 8 hold
that the appellants had acquired tenancy rights relating to the land in
dispute.
5.
Feeling
aggrieved by the order of the Division Bench, the present Special Leave
Petitions were filed by the appellants in this Court, which on grant of leave
were heard in the presence of the learned counsel for the parties.
6.
Having
heard the learned counsel for the parties and after going through the materials
on record, the only question that needs to be decided in the present appeals is
whether the land in dispute was tenanted on 1st of March, 1974, i.e. the day on
which the Act was amended and Sections 44, 45 and 48A of the Act were introduced.
As noted herein earlier, the appellants had brought on record the following
documents and evidence to substantiate their case of tenancy in respect of the
land in dispute on the notified date :- (i) Admission of the landlord-
respondent made in the year 1960- 1962.
(ii) Judgment and
order dated 29th of June, 1972 in Rent Recovery proceedings for the period from
1966 to 1972.
(iii) Entries in the
revenue Record of Rights relating to land in dispute from 1969 to 1997.
(iv) Evidence of
independent witnesses of adjoining areas;
7.
It
may be mentioned herein that against the aforesaid documents and evidence
produced by the appellants in order to prove their possession and right of
tenancy relating to the land in dispute, the respondent, however, had failed to
produce any document to establish that he was in possession of the land in
dispute on the relevant date i.e. on 1st of March, 1974.
8.
From
a bare perusal of the orders passed by the Land Tribunal and the learned Single
Judge as well as the Division Bench of the High Court, it is clear that the
appellants were found to be in possession and in cultivation 10 of the land in
dispute. The only ground on which the claim of tenancy right of the appellants
was not accepted either by the Land Tribunal or by the High Court was that the
appellants had failed to produce any document or material to show that they had
acquired tenancy rights in respect of the land in dispute on the appointed day.
In view of our findings made herein above that the appellants had produced
sufficient material to prove that they had acquired the tenancy right in
respect of the land in dispute, viz., the admission of the landlord respondent
in the rent recovery proceedings that - (i) The appellants were tenants and,
therefore, were liable to pay rent to the respondent in respect of the land in
dispute.
(ii) The entries in
the record of rights in respect of the land in dispute would also show that the
type of cultivation was gutha (rent).
(iii) The adjacent
landowners in their deposition also deposed that the appellants were in
possession and were in cultivation of the land in dispute on a lease basis.
(iv) The names of the
appellants in respect of the land in dispute were recorded in the record of
rights as cultivators on lease basis.
1.
2.
3.
4.
5.
6.
7.
8.
9.
Appearing
on behalf of the appellants, Ms. Indu Malhotra, learned senior counsel, at the
first instance, contended that while deciding the issue raised before the High
Court as well as the Land Tribunal, the entries in the relevant Record of
Rights relating to the land in dispute and also the above aspects of the matter
were not at all considered. Relying on a judgment of this Court in the case
Ningayya Erayya Hiremath & Ors. [1999 (1) SCC 176], Ms. Indu Malhotra,
learned senior counsel contended that in view of the findings of fact arrived
at by the Land Tribunal 12 as well as by the High Court that on 1st of March,
1974 and thereafter, the appellants continued to be in possession of the land
in dispute and in cultivation of the said land and therefore, they were
necessarily entitled to registration as an occupancy right holder.
10.
The
learned counsel appearing for the respondent contested the aforesaid submission
of the learned senior counsel appearing for the appellants and sought to argue
that the appellants had miserably failed to prove that they were tenants under
the deceased Rama Reddy or his predecessor-in-interest and in view of the fact
that the two courts concurrently found that although the appellants were in
possession of the land in dispute had failed to prove their status in respect
of the land in dispute, would not be entitled to any relief.
11.
Having
examined the aforesaid submissions of the learned counsel for the parties and
after going through the impugned order and the materials on record, we are of
the view that the judgment of the High Court is liable to be set aside for the
reasons mentioned hereinafter. Taking into 13 consideration the findings of
fact on the question of possession arrived at by the High Court as well as the
Land Tribunal that the appellants were in possession and in cultivation of the
land in dispute and considering the admission made by the landlord/respondent
that the appellants were tenants in respect of the land in dispute in earlier
recovery proceedings relating to arrears of rent and considering the fact that
on the relevant date of coming into force of the Act, viz., on 1st of March,
1974, the appellants were in possession of the land in dispute, we have no
hesitation to hold that the continuous possession of the appellants which was
conclusively found by the Tribunal as well as by the High Court and in view of
the admitted fact that the respondent had admitted in their deposition of an
earlier proceeding that the appellants were tenants in respect of the land in
dispute and the entries in the Record of Rights clearly show that the
appellants were in possession of the land in dispute and the nature of
cultivation was gutha and further in the absence of any material produced by
the respondent to show that in fact 14 the appellants were not tenants in
respect of the land in dispute, we are of the view that there is no escape that
the appellants had acquired occupancy right in respect of the land in dispute and
their names shall be registered as occupancy right holders in respect of the
land in dispute. In Siddawwa Kom Udochappa Vaddar (Supra), this Court, while
dealing with a case under the Act, observed as follows:
"The short
question which falls for consideration is that on the relevant date, that is on
1.3.1974, when the Act came into force, as to who has been in possession of the
land. If the first respondent has been in possession thereof and cultivating
the same, necessarily, is entitled to registration of occupancy right. Since
the appellant on the relevant date was not in possession thereof and the
concurrent findings of the Tribunal, learned Single Judge and the Division
Bench, we do not think there is any merit in this appeal which is accordingly dismissed."
A plain reading of
this decision of this Court would clearly show that if possession in respect of
the land in dispute on the relevant date was in favour of the appellants
showing them to be in cultivation and possession of the same are entitled to
registration of the occupancy rights in respect of the land in dispute. A
decision was cited by the learned 15 counsel for the respondent in the case of
Damu Ganu SCC 182] to show that this Court would not be entitled to interfere
with concurrent findings of facts based on appreciation of evidence and,
therefore, no error of law was committed.
12.
In
our view, this decision on the face of it cannot be applied in the facts and
circumstances of the present case because the aforesaid decision was rendered
in a case which was covered under the Bombay Tenancy and Agricultural Lands
Act, 1948. Furthermore, in the aforesaid decision, the concurrent findings on
the question of possession was not in favour of the person who was claiming to
get his name registered as an occupancy right holder in respect of the land in
dispute, whereas in the present case, the concurrent findings of fact on the
question of possession by the High Court as well as by the Land Tribunal stood
in favour of the appellants. At the risk of repetition, in the present case
both the Land Tribunal and the High Court held that the appellants were in
possession of the land in dispute and the 16 entries in the Record of Rights
also stood in their names showing that the nature of cultivation was gutha
(rent) and also the appellants were in possession of the same. As noted herein
earlier, the respondent had failed to produce any document or material to show
to the contrary. Therefore, the onus was on the respondent to show by producing
material that the appellants had not acquired any status of occupancy right
although they were found to be in continuous possession of the land in dispute.
(See : Gajadhar Prosad Singh & Ors. vs. Sheo Nandan Prosad Singh & Ors.
[23 CWN 304]. Since the respondent had failed to produce any material or
document to prove that the appellants had not acquired any status in respect of
the land in dispute and had failed to show that the entries in the Record of
Rights were wrong, we do not find any ground to reject the claim of the
appellants for conferring status of occupancy right holder in respect of the
land in dispute. In view of our discussions made hereinabove, we do not find
any support to rely on the decision of this Court in the case 17 that since the
appellants had failed to prove their status of tenancy in respect of the land
in dispute, they were not entitled to any relief. It is true that the entries
in the revenue record cannot create any title in respect of the land in
dispute, but it certainly reflects as to who was in possession of the land in
dispute on the date the name of that person had been entered in the revenue
record. That apart, in that decision of this Court, on which reliance was
placed by the learned Counsel for the respondent, it was admitted that the
landlord did not receive any rent from the person in possession. Relying on
this admission of the person from whom no rent was received, it was found that
the plea of tenancy was a false one. As noted herein earlier, in the present
case, not only the revenue records clearly show that the appellants were in
continuous possession of the land in dispute, and the admission of the
respondent that the appellants were tenants in an earlier recovery proceedings,
and in the absence of any document having been produced by the respondent to
show that the entries in the Record of Rights were wrong, it is not possible
for us to 18 rely on the aforesaid decision cited by the learned counsel for
the respondent. So far as the decision of a learned Judge of the Bombay High
Court in the case of Rita Premchand & is concerned, there is no dispute
about the proposition enunciated in the said decision which says that the
entries in the revenue records are not dispositive or conclusive on questions
of title and that the revenue record cannot create any title and are relevant
only for fiscal purposes. This proposition is not disputed, nor can we dispute
it. In view of our discussions made hereinabove and accepting the principles
enunciated in the aforesaid decision of the Bombay High Court we are of the
view that the name of the appellants should be registered as an occupancy right
holder in respect of the land in dispute. Accordingly, the application of the
appellants shall stand allowed and consequent thereupon the orders of the Land
Tribunal as well as the Division Bench and the learned Single Judge of the High
Court shall stand set aside.
13.
For
the reasons aforesaid, the appeals are allowed, the impugned judgment of the
High Court as well as the judgments of the learned Single Judge and the Land
Tribunal stand set aside and the application for recording names of the
appellants as occupancy right holders in respect of the land in dispute stands
allowed. There will be no order as to costs.
..............................J.
[TARUN CHATTERJEE]
NEW
DELHI:
.....................
.........J.
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