Judgment:
ORDER
1. On the coming into force of the Karnataka Land Reforms (Amendment) Act (Act No. 1 of 1974) (hereinafter referred to as 'the Act'), the deceased first petitioner late Tukaram Govind Naganvakar and the second petitioner (hereinafter referred to as 'the petitioners') filed Form No. 7 claiming occupancy right in respect of land measuring 4 acres 18 guntas in Survey No. 417/1 of Nipani Village, Chikodi Taluk, Belgaum District. It is their case that their father, one Govind Naganvakar was originally the agricultural tenant of the said land and he continued to be in possession of the said land as an agricultural tenant till his death in the year 1967; and he was paying rent to the landlord on half crop share basis. After his death, the petitioners, who were cultivating the land in question along with him, continued to be in possession and enjoyment of the said land as agricultural tenants till 1-3-1974 i.e., the date on which the Act came into force. According to the petitioners, one Panduranga Mirajkar was the owner of the said land and the said Panduranga Mirajkar sold the said land to the families of respondents 3 to 6. Thereafter, by means of registered sale deed dated 7th April, 1962, the father of the petitioners, the aforesaid Govind Naganvakar, purchased one-fifth undivided interest in the land in question from the third respondent.
2. The Land Tribunal, Chikodi (hereinafter referred to as 'the Tribunal'), on consideration of the application filed by late Tukaram Govind Naganvakar and petitioner 2 in Form No. 7, by means of its order dated 27th November, 1981, granted occupancy right in favour of deceased first petitioner-late Tukaram Govind Naganvakar and the second petitioner-Sakaram Govind Naganvakar in respect of land measuring 2 acres 8 guntas each in Survey No. 417/1 of Nipani Village, Chikodi Taluk, Belgaum District.
3. Aggrieved by the said order, respondents 3 to 6 filed an appeal before the Land Reforms Appellate Authority at Belgaum (hereinafterreferred to as 'the Appellate Authority'). The Appellate Authority, by its order dated 22nd May, 1987 made in Case No. RALF-279 of 1986, allowed the appeal, set aside the order passed by the Tribunal and rejected Form No. 7 filed by the tenants. Aggrieved by the said order, this petition is filed under Section 121-A of the Act.
4. During the pendency of this petition, the first petitioner having expired, his legal representatives l(a) to 1(0 were brought on record.
5. Sri C.S. Kothawale, learned Counsel appearing along with Sri B.S. Kamate, for the petitioners, challenging the correctness of the order impugned, strongly urged that the order passed by the Appellate Authority is totally illegal and erroneous in law inasmuch as the Appellate Authority has erroneously proceeded on the basis that since the father of the petitioners Govind Naganvakar having purchased one-fifth undivided interest of the third respondent in the land in question, Form No. 7 filed by the tenants was not maintainable in law as they have become owners of the land in question. He pointed out that the entire approach made by the Appellate Authority to the matters in controversy is totally erroneous in law. According to him. since it cannot be disputed that late Govind Naganvakar was tenant in respect of the entire extent of 4 acres 18 guntas in Survey No. 417/1 of Nipani Village, the purchase of one-fifth undivided interest in the land in question by him, would not put an end to his tenancy right in respect of the land in question. Elaborating this, he made four submissions. Firstly, he submitted that the said Govind Naganvakar and his legal heirs would acquire right, title and interest in one-fifth undivided interest of the owner and would be entitled for possession of the identified portion of the said one-fifth interest in the land only on partition of the land by metes and bounds, and till it takes place, what the said Govind Naganvakar has acquired in respect of which the petitioners are entitled to succeed, would be only one-fifth owner's interest; and, therefore, according to the learned Counsel, the acquisition of one-fifth owner's interest by late Govind Naganvakar could not put an end to or in any manner affect his rights to get occupancy right in respect of the entire 4 acres 18 guntas of the land in question. He further pointed out that a stranger who purchases a share of a member of the joint family, will not become a member of the coparcenary; he will not be a tenant-in-common along with other members of the joint family, but he only gets right to bring about a suit for partition; and, therefore, the view taken by the Appellate Authority that on account of the purchase of one-fifth interest in the land in question by late Govind Naganvakar, he had become the owner of the land in question and as such, the petitioners are not entitled for conferment of occupancy right in respect of the land in question, is totally erroneous in law. Secondly, relying upon Section 111(d) of the Transfer of Property Act, Sri Kothawale submitted that a lease of immovable property gets determined only in cases where the interest of the lessee and the lessor in the whole of the property becomes vested at the same time in one person in the same right. It is his submission that since in the instant case, the entire interest of the lessor has not vested with late Govind Naganvakar, the interest that has vested with him being only one-fifth in theland in question, the view taken by the Appellate Authority that late Govind Naganvakar has become owner of the land in question and as such, the petitioners, who are his legal representatives, are not entitled for conferment of occupancy right, is erroneous in law. Thirdly, he submitted that the object of the Act is to confer occupancy rights on the tenants who were in possession and cultivation of agricultural lands as on 1-3-1974 and immediately prior to that date; and the said valuable rights granted to the tenants cannot be taken away merely on the ground that tenant has purchased undivided one-fifth interest of the landlord in the tenanted land. In this connection, he referred to me Sections 14, 23 and 26 of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as 'the BTAL Act'') and pointed out that since there was a protection given under Section 26 of the BTAL Act from eviction of a tenant by a landlord, the purchase of one-fifth interest of the landlord in the land in question by a tenant cannot deprive his right to seek occupancy right in respect of the land in question. Finally, Sri Kothawale submitted that Section 138 of the Act provides that the provisions contained in the Act would prevail over any other rights and, therefore, the acquisition of one- fifth interest of the landlord by the tenant will not in any way affect such tenant's right to get conferment of occupancy right in respect of the land in question. In support of his submissions, Sri Kothawale relied upon the decisions in the cases of Shah Mathuradas Maganlal and Company v Nagappa Shankarappa Malaga and Others; Smt. Kailash Pali Devi v Smt. Bhubneshwari Devi and Others; Shaikh Faqir Bakhsh v Murlidhar and Others; Bai Shevantibai v Janardan R. Warick and Others; and V.C. Thani Chcttiar and Another v Dakshinamurthy Mudaliar and Others.
6. However, Sri G.S. Visweswara, learned Counsel appearing for respondents 3 to 6, strongly supported the impugned order. It is his submission that since the original tenant i.e., the father of the petitioners, the aforesaid Govind Naganvakar, has admittedly purchased one-fifth interest of the third respondent in the land in question, it must be held that he had an interest in every bit of the land in question till his one-fifth share in the land in question is divided by metes and bounds and possession is given to him; and, therefore, it must be held that the interest of the tenants in the land in question has merged with the interest of the owners; and therefore the order passed by the Appellate Authority does not suffer from any infirmity, which calls for interference by this Court in exercise of its vevisional jurisdiction.
7. In the light of the rival contentions advanced by learned Counsel appearing for the parties, the only and important question that would arise for consideration in this petition, is as to whether the petitioners are not entitled for conferment of occupancy right in respect of the landin question since one-fifth interest of the owner in the land in question was purchased by the original tenant i.e., late Govind Naganvakar.
8. It is not disputed that the recital in the registered sale deed dated 7th April. 1962 shows that late Govind Naganvakar was a tenant in possession of the entire extent of the land in question. Further, the entries in the record of rights and pahani for the years 1952-53 to 1966-67, copies of which have been produced as Annexures-A, B and C, show that the original tenant the aforesaid Govind Naganvakar was in possession and cultivation of the land in question as tenant in respect of the entire extent of the land. Further, the entries in the record of rights and pahani for the years 1967-68 upto 1973-74 also show that the petitioners were in possession and cultivation of the land in question. Even for the period subsequent to 1973-74, the names of the petitioners are shown in the record of rights as persons in possession of the land in question. As noticed by me earlier, the Tribunal has granted occupancy right in favour of the petitioners on the ground that they were in possession and cultivation of the land in question on the date of the coming into force of the amending Act as agricultural tenants. The Appellate Authority also proceeds on the basis that late Govind Naganvakar was in possession and cultivation of the land in question till his death and thereafter, the petitioners continued to be in possession and enjoyment of the land in question as on 1st March, 1974 and immediately prior to that date. Therefore, the finding recorded by the Tribunal and the Appellate Authority in the orders impugned that the petitioners were in possession and cultivation of the land in question as tenants, is unexceptionable and the said finding is not liable to be interfered with by this Court in exercise of its revisional jurisdiction under Section 121-A of the Act. The only ground on which the Appellate Authority has rejected the claim of the petitioners, was that late Govind Naganvakar having purchased one-fifth undivided interest of the landlords in the land in question, the petitioners are not entitled for conferment of occupancy right in respect of the land in question. I am of the opinion that the said view taken by the Appellate Authority is totally erroneous and unsustainable in law. No doubt, under the Hindu Law, a member of the joint family has a joint interest in every portion of the joint family property and no member of the joint family can claim that he is a owner of any identified portion of the joint family property till the partition and delivery of possession of the joint family property takes place. However, as rightly pointed out by Sri Kothawale, the purchaser of an undivided share of a member of the joint family will not become a member of the joint family and he will not be entitled to be in joint possession along with other members of the joint family in respect of the joint family properties. He does not acquire any interest in the property purchased by him. He neither becomes a tenant in common with the members of the family, nor is he entitled to joint possession with them. His right is only to seek for general partition and separate possession of the joint family property. In my view, I am supported by the decision of the Bombay High Court in the case of Bai Sheuantibai, supra. In the said decision, at page 332, the Court observed as follows:
'The first question to consider, before deciding the question of limitation, is as to what interest the plaintiff acquired. It is, in myopinion, clearly established that a purchaser from a member of a Hindu joint family does not acquire a right to be considered himself a member of the joint family in place of the vendor, or a right to have joint possession of the family property in place of the vendor, nor, of course, does he acquire any right to possession of any specific part of the property, that being a right which the vendor himself did not possess. The only right which the purchaser has in such a case is a right to sue for partition and procure to be allotted to himself the share which would have gone to his vendor. I think that that is the result of the three Privy Council cases, Deendayal Lal u Jugdeep Narain Singh; Suraj Bunsi Koer v Sheo Persad Singh2 and Hardi Narain Sahu u Ruder Perkash Misser and the decision of this Court in Naro Gopal u Paragouda and Pandu Vithoji v Goma Ramji, all of which cases are discussed by the learned Judge. It seems to me unnecessary to consider a decision of a Bench of this Court in Bhau v Budha Manku, which is discussed by the learned Judge and relied on by the appellant. The effect of that decision is that although a purchaser from a member of a joint family is not entitled to possession of any part of the joint family property, except after obtaining partition, nevertheless if he in fact gets possession of a part of the property, the Court is not bound to disturb his possession pending a partition suit. I do not think that the decision went beyond that. It is unnecessary to consider whether that decision was right or wrong, because there is no suggestion here that the plaintiff did obtain possession of any part of the joint family property'.
The same view is expressed by the Division Bench of the Madras High Court in the case of V.C. Thani Chettiar, supra. In the said decision, at paragraph 5 of the judgment, the Court observed thus:
'Before we deal with the question as to which Article of the Limitation Act applies to a case like the present, it is useful to examine the position and the rights of persons like the plaintiffs who purchase a share of some of the coparceners of a Hindu family. The purchaser cannot claim to be put in possession of any definite piece of family property. He does not even acquire any interest in the property sold. He does not become a tenant-in-common with the members of the family. He is not entitled to joint possession with them. He has only an equity to work out his rights by means of a partition standing in his vendor's shoes. The alienee's suit for partition must be one for partition of the entire property and not for the partition of anyspecific item of or interest in the family property. Such a suit, however will not be technically on a par with a suit for partition filed by a coparcener. Such a suit would not have the necessary effect of breaking up the joint ownership of the members of the family in the remaining property nor that corporate character of the family'.
The Supreme Court in the case of Smt. Kailash Pati Devi, supra, has observed thus:
'The purchaser of joint family property from a member of a joint Hindu family may have the right to file a general suit for partition against the members of the joint family and, indeed, that may be the proper remedy for him to adopt to effectuate his purchase'.
It is also useful to refer to the observations made in Sri N.R. Raghavachariar's Hindu Law - Principles and Precedents, Ninth Edition, at page 10, which read as hereunder:
'A person who purchases an undivided share of a coparcener cannot claim to be put in possession of any piece of family property. He does not even acquire any interest in the property sold nor does he become a tenant-in-common with the members of the family, nor is he entitled to joint possession with them. His claim is only to an equity to work out his right by means of a general partition by standing in the vendor's shoes and not to a partition of any specific item of or interest in the family property'.
Therefore, I am of the view that it is not possible to take the view that the tenant i.e., late Govind Naganvakar, having purchased one-fifth undivided interest of the landlord in the land in dispute, has acquired ownership right in respect of every portion of the undivided interest in the entire land and as such, the tenant is not entitled to claim occupancy right in respect of the land in question. Further, I am also of the view that the rights of the parties will have to be examined with reference to the protection given to the tenants under the BTAL Act and also the Act. It cannot be disputed that before coming into force of the Act, the rights of the parties were governed by the BTAL Act. Section 14 of the BTAL Act gives protection to a tenant from eviction. The said section reads as follows:
'14(1) Notwithstanding any law, agreement or usage, or the decree or order of a Court, the tenancy of any land shall not be terminated--
(a) unless the tenant--
(i) has failed to pay the rent for any revenue year before the 31st day of May thereof;
(ii) has done any act which is destructive or permanently injuries to the land;
(iii) has sub-divided, sublet or assigned the land in contravention of Section 27;
(iv) has failed to cultivate it personally; or
(v) has used land for a purpose other than agriculture or allied pursuits; and
(b) unless the landlord has given three months' notice in writing informing the tenant of his decision to terminate the tenancy and the ground for such termination, and within that period the tenant has failed to remedy the breach for which the tenancy is liable to be terminated.
(2) Notwithstanding in sub-section (1) shall apply to the tenancy of any land held by a permanent tenant unless by the conditions of such tenancy the tenancy is liable to be terminated on any of the grounds mentioned in the said sub-section'.
From the reading of the said section, it is clear that the tenancy of a tenant can be terminated only under the circumstances set out in the said section. Therefore, under normal circumstances and unless it is established that the tenant is liable to be evicted in terms of Section 14 of the BTAL Act, a tenant cannot be evicted from the land. It is also necessary to point out that even under the Act, prior to the coming into force of Act 1 of 1974, it is only on compliance of the provisions of Section 14 of the Act as it stood prior to its amendment, the landlord could seek resumption of a tenanted land on strict compliance of the provisions of the Act. Therefore, the Act also provided protection to the tenant from eviction. It cannot be disputed that the Act is a beneficial legislation intended to confer ownership rights to the tenants who were in possession and cultivation of agricultural lands on the date of coining into force of the Act i.e., on 1-3-1974. Merely because the Hindu Law provides that a member of the joint family has a joint interest in every portion of the joint family properties, in my view, it is not possible to take a view that merely because the tenant, late Govind Naganvakar had purchased one-fifth undivided landlord's interest in the land in question, the tenant would lose his tenancy right and the land in question ceased to be a tenanted land on the date of coming into force of the Act. It cannot be ignored that what has been purchased by late Govind Naganvakar is the landlord's one-fifth undivided interest. The purchase of the said landlord's interest is subject to the rights of the tenant. The tenants would undoubtedly be entitled for conferment of occupancy right. Therefore, when the Court is required to examine the rights of the parties in a situation like this, the Court will have to examine such rights and evolve a principle of law which would be in furtherance of the object of the Act and not to defeat the rights and protection given to tenants under the Act. The provisions contained in Section 138 of the Act also make it clear that the provisions of the Act will prevail over any other enactment with respect to matters enumerated in Lists II and III of the VII Schedule to the Constitution. In other words, Section 138 of the Act gives an overriding effect to the rights of the parties in preference to the rights of the parties governed by any other law. Therefore, considered from this point of view also, it is not possible to accept the view taken by the Appellate Authority.
9. Further, this very matter may be examined from another angle. In the instant case, undisputedly late Govind Naganvakar has acquired only one-fifth undivided interest of the landlord i.e., ownership right, to a tenanted property. Till the landlord - whether be a purchaser of one-fifth right or the entire ownership right, is able to secure possession of a tenanted property in accordance with the tenancy iaw, such a landlord or the owner of the land would be having an interest in the land either to collect rent or to receive compensation in the event of land vesting with the State Government. Therefore, the issue that has arisen for consideration has to be necessarily examined with reference to the rights created and the protection given to a tenant under the provisions of the Act. If it is so examined, understood and appreciated, in my view, the fact that the original tenant, late Govind Naganvakar has purchased one-fifth interest in the land would not make any difference from the third party i.e., a person other than the tenant, purchasing such interest, in which event the land would undoubtedly vest with the State Government. Further, as rightly pointed out by Sri Kothawale, Section 111(d) of the Transfer of Property Act provides that lease of immovable property determines in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right. Therefore, it is clear that it is only in case the interest of the lessee and the lessor in the whole of the property stands vested at the same time in one person in the same right, there would be determination of lease. In the instant case, where the original tenant has acquired only one-fifth undivided interest of the lessor, it cannot be said that there is determination of the lease. If there is no determination of lease, the agrarian relationship of landlord and tenant continues. In the instant case, as noticed by me earlier, both the original tenant as well as his sons did not seek for partition of one-fifth undivided interest in the land and take even symbolic possession of the same. Therefore, I am of the view that the conclusion reached by the Appellate Authority that since the original tenant, late Govind Naganvakar had purchased one-fifth undivided interest in the land in question from the landlord, the petitioners are not entitled for conferment of occupancy right, is unsustainable in law. In view of the said conclusion, I am of the view that the order impugned is liable to be set aside.
10. Accordingly, order dated 22nd May, 1987 made in No. RALF-279 of 1986 by the Land Reforms Appellate Authority at Belgaum is hereby set aside; and in its place, order dated 27th November, 1981 made in No. KLR/Nippani/46-153-201-95-53/74 by the Land Tribunal-II, Chikodi, is restored.
11. In terms stated above, this petition is allowed and disposed of.
12. However, no order is made as to costs.
13. Sri M.V. Shamanna, learned Additional Government Advocate, is permitted to file his memo of appearance within four weeks from today.