Judgment:
ORDER
Chidananda Ullal, J.
1. The instant petition is filed to challenge the order dated 7.11.92 passed by the Land Tribunal, Haveri, whereby the Tribunal had rejected the claim of the petitioner for grant of occupancy right in respect of 4 acres 34 guntas of land in Survey No. 67 of Haralahalli village, Haveri Taluk.
2. I have heard the learned Counsel Sri F.V. Patil for the petitioners No. 1a to 1d and the learned Government Pleader Sri. M.N. Ramanjaneyagouda for the Respondents No. 1 and 2 and Sri Satish R. Girji for the Respondents No. 3a to 3b. I have also perused the records.
3. The brief facts of the case are that, one Shankaragouda Tirakanagouda Hosagoudar, the father of the Petitioners No. 1a to 1d had filed Form No. 7 before the Land Tribunal under Section 48-A of the Land Reforms-Act for grant of occupancy right in his name in respect of 4 acres 34 guntas in Survey No. 67 of Haralahalli village, Haveri Taluk. In the earlier round of proceedings, the Land Tribunal had granted the occupancy right to the said original declarant, but the father of the Respondents No. 3a to 3b by name Hanamant Narasimha Karpur had filed a Writ Petition in W.P.No. 3731/ 78 challenging the said order dated 19.11.77 granting occupancy right. The said Writ Petition was allowed by this Court by quashing the said order with a direction to the Land Tribunal to hold a fresh enquiry in compliance of Rule 17 of the Land Reforms Rules and further to pass an order thereon. That thereafter, the Land Tribunal held another round of enquiry, whereupon the Land Tribunal passed the impugned order, whereby it had rejected the claim of the original declarant. It is the said order now under challenge before this Court by the L.Rs. of the original declarant - the Respondents No. 3a and 3b, who are the sons of the original owner Hanamant Narasimha Karpur.
4. The learned Counsel for the petitioner while urging the grounds in the Writ Petition argued that the father of the Respondents No. 3a and 3b had caused for false 'wardi' to the Talati in the year 1960-61 and in collusion with the Revenue Authorities got the mutation entry mutated, whereby the original entry showing their father as the permanent tenant was deleted and in his place the name of father of Respondents No. 3a and 3b came to be entered as the cultivator. That the said mutation entry was not in consonance with law and therefore not to be acted upon, that in the year 1967-68, the name of the Petitioner No. 1 came to be entered in the R.O.R. as a temporary tenant and that he was cultivating, ever since the year 1967-68, and on the relevant day i.e. 1.3.74.
5. That the petitioner by resorting to an original suit in O.S.No. 49/ 71 before the Principal Munsiff, Haveri, got the temporary injunction as against the father of the Respondents No. 3a and 3b not to interfere with the possession of the subject land and the said ad interim order of temporary injunction was confirmed in Mis. Appeal No. 96/71 before the Civil Judge, Haveri and also by this Court in C.R.P.No. 2304/71. He had also drawn my attention to the assessment paid by the father of the Petitioners on 7.5.58, 8.5.60, 23.5.61, 26.4.62, 15.5.62, 21.5.65, 5.4.68, 8.2.73 and 17.3.74 and further submitted that the Land Tribunal did not consider the said documents and that therefore, the rejection of the claim of the petitioners on the part of the Land Tribunal was not just and proper. Hence, he prayed that the impugned order be quashed and the matter be remanded to the Land Tribunal with a direction to grant occupancy right to the petitioners.
6. The learned Counsel for the Respondents No. 3a and 3b while supporting the impugned order passed by the Land Tribunal argued that the father of the petitioners No. 1a to 1d had voluntarily surrendered the tenancy in the year 1956 and thereafter the mutation entry came to be changed from his name to the name of the father of the Respondents No. 3a to 3b and thereafter, the father of the Respondents No. 3a to 3b cultivated the land and the R.O.R. from the year 1956 down to the year 1966-67 stood in the name of the father of the Respondents No. 3a and 3b. He had further argued that the father of the petitioners No. 1a to 1d in collusion with the Talati had got entered his name as an ordinary tenant by a 'wardi' (report) dated 10.8.67 to get the mutation entry No. 371 dated 26.10.67 to mutate the above entry showing him i.e. the father of the petitioners No. 1a to 1d as an ordinary tenant. That thereafter, it was the lot of the father of the Respondents No. 3a and 3b to challenge the same before the Assistant Commissioner, Haveri in No. RTSAP/45/69-70 and the Assistant Commissioner by his order dated 17.10.70 in the said proceedings set aside the said mutation entry No. 371 dated 26.10.67 and further restored the original entry showing the father of the Respondents No. 3a and 3b as cultivator of the subject land. That thereafter, the father of the Petitioners No. 1a to 1d had filed an appeal before the Special Deputy Commissioner, Dharwad and the said Appeal failed, for, the Special Deputy Commissioner had confirmed the order of the Assistant Commissioner, Haveri. That thereafter, mutation entry No. 412 came to be entered in the ROR to restore the original entry, whereby the father of the Respondents No. 3a and 3b were shown to be the cultivators from the year 1956. He had further submitted that it is thereafter, the father of the Petitioners No. 1a to 1d had also filed mischievously O.S.No. 49/71 before the Principal Munsiff, Haveri to declare that he was tenant in respect of the subject land and also for possession of the subject land and also for a permanent injunction as against the father of the Respondents No. 3a and 3b and another by name Guddappa Neelappa Keng Ningappanavar and in the said suit, the father of the Petitioners No. 1a to 1d had also obtained an ad interim order of injunction. It is in this manner, the name of the father of the petitioners No. 1a to 1d came to be entered in the R.O.R. from the year 1967 onwards and the same was of no consequence and relief to the father of the Petitioners No. 1a to 1d and now, for that, the Petitioners No. 1a to 1d since the name of their father came to be mutated as long back as in the year 1956 as stated above and therefore his submission is that the impugned order passed by the Land Tribunal be confirmed.
7. The facts in the above case appear to be complicated and it appears to me that neither side did not place the facts properly before this' Court. Therefore, I have gone through the records of the Land Tribunal which included some case papers of O.S.No. 49/71 on the file of the Principal Munsiff, Haveri, as certain issues on the point of tenancy were referred to the Land Tribunal, for its decision. The facts as I have understood are as hereunder in the order of the sequences:
1) That Shankaragouda Tirakanagouda Hosagoudar father of the Petitioners No. 1a to 1d was a permanent tenant of the subject landtill the year 1956 in which year the 'wardi' (report) was stated to have been given by him to the Talati of Haralahalli village to give up his permanent tenancy, upon which mutation entry 287 dated 20.9.60 came to be entered, whereby his name was deleted from the R.O.R. and the name of the father of the Respondent No. 3a and 3b -Hanamant Narasimha Karpur came to be entered showing him therein as the cultivator.
2) In the year 1960, the father of the Petitioners No. 1a to 1d had given a 'wardi' that the earlier report regarding giving up of the permanent tenancy by him was a false report and his name to be entered as ordinary tenant, whereupon mutation entry No. 371 dated 26.10.67 came to be entered by the Talati, whereby the name of the father of the Petitioners No. 1a to 1d came to be entered showing him as ordinary tenant.
3) That the father of the Respondents No. 3a and 3b challenged the said mutation entry No. 371 dated 26.10.67 before the Assistant Commissioner, Haveri in RTSAP/45/69-70 and the Assistant Commissioner by his order dated 17.10.70 in the said proceedings had set aside the said mutation entry dated 26.10.67 and further restored the original mutation entry No. 287 dated 20.9.60 and in the process, the name of the Respondents No. 3a and 3b was restored.
4. That the father of the Petitioner No. 1a to 1d had preferred an Appeal before the Special Deputy Commissioner, Dharwad, as against the said order dated 17.7.70 of the Assistant Commissioner referred to above and the said Appeal failed, since the Special Deputy Commissioner confirmed the order of the Assistant Commissioner. However, it appears that the Special Deputy Commissioner, Dharwad in passing the order rejecting the said Appeal observed that the father of the Petitioners 1a to 1d could approach the Civil Court for the relief.
5. That thereafter, the father of the petitioners No. 1a to 1d had filed O.S.No. 49/71 before the Principal Munsiff, Haveri, for a declaration of his status as a tenant under the father of the Respondents No. 3a and 3b, for possession of the subject land and also for a decree of permanent injunction as against the father of the Respondents No. 3a and 3b and another by name Guddappa Neelappa Keng Ningappanavar. The father of the petitioners No. 1a to 1d had filed Form No. 7 on 24.8.74 in respect of the subject land contending therein that he was cultivating the subject land for about 34 years, but in the R.O.R. upto the year 1956, the name of the father of the Respondents No. 3a and 3b came to be entered as a cultivator in the R.O.R. in view of mutation entry No. 287 dated 20.9.60 and the said entry continues to be good and hold the field even to this day since same was restored by the Revenue Authorities in the M/E proceedings.
8. The Land Tribunal while passing the impugned order rejected the claim of the petitioner on the ground that from the year 1956-57 the mutation entry No. 231 in the R.O.R. came to be mutated showing the name of the father of the Respondents No. 3a and 3b as the cultivator with a 'wardi' in the year 1956 to the effect that he had voluntarily given up the permanent tenancy and that the subsequent mutation entry in No. 287 dated 20.9.60 entering him as a temporary tenant was set aside by the Assistant Commissioner by his order dated 17.7.70 and that order of the Assistant Commissioner was also affirmed by the Special Deputy Commissioner and that the assessment paid by him in the years 1958, 1960, 1963, 1965, 1968, 1973, 1974, 1976 and 1977 were not showing therein the subject survey Nos. and that the Petitioners failed to show before the Land Tribunal that the original declarant was cultivating the subject land on tenancy basis and that the Civil Court order granting him temporary injunction was not binding on the Land Tribunal in view of the Division Bench decision of this Court reported in 1984(1) KLJ page 489.
9. Now the question before me is whether the above order passed by the Land Tribunal is just and proper or not in the facts and circumstances of the case. It is pertinent to mention here that the name of the original declarant Shankaragouda, Tirakanagouda Hosagoudar came to be mutated in the R.O.R. with a 'wardi' that he had voluntarily given up his tenancy in favour of the father of the Respondents No. 3a and 3b. That mutation of the entry deleting the name of the original declarant from the ROR was in fact not challenged by him before the proper forum. As per Section 7(1) of the Mysore Land Reforms Act, 1961, for restoration of his tenancy the proper forum was the Land Tribunal. Let apart, he would have as well challenged the mutation of the entry in the mutation register before the jurisdictional Assistant Commissioner, Haveri. The original declarant having done neither had resorted to a 'wardi' before the Talati in the year 1960 to enter his name in the mutation register as a temporary tenant on the ground that the earlier mutation was on a false report that he had voluntarily given up his tenancy, whereas he was not. On the basis of that report, mutation entry No. 287 dated 20.9.60 came to be entered showing the father of the Petitioners No. 1a to 1d as a temporary tenant. It is the said entry that was challenged by the father of the Respondents No. 3a and 3b before the Assistant Commissioner in No. RTSAP/45/69-70 and that the Assistant Commissioner set aside the said entry No. 287 dated 20.9.60 showing the father of the Petitioners No. 1a to 1d as a temporary tenant and that thereafter, the father of the petitioners No. 1a to 1d had resorted to an appeal before the Deputy Commissioner to challenge that order of the Assistant Commissioner and in the process, it appears to me that the father of the Petitioners No. 1a to 1d had missed the whole track of the case i.e. firstly to challenge the original mutation entry No. 287 of the year 1960, wherein, in the place, the name of the father of Petitioners No. 1a to 1d showing him permanent tenant, the name of the father of the Respondents No. 3a and 3b came to be entered as a cultivator and secondly in not approaching the Land Tribunal for restoration of his tenancy under Section 7(1) of the Mysore Land Reforms Act, 1961.
10. It appears to me that the whole basis for the claim of tenancy by the original declarant Shankaragouda Tirakanagouda Hosagoudar, the father of the Petitioners No. 1a to 1d was on the ground that he was the permanent tenant earlier to the year 1956 and that his name is now entered in the R.O.R. as a temporary tenant from the year 1967 and onwards and as on the relevant date i.e. 1.3.74, he was cultivating the subject land as a tenant and therefore he was entitled to for the grant of occupancy right. The moot point is whether the original declarant Shankaragouda Tirakanagouda Hosagoudar was a tenant or not within the meaning of Section 2(34) of the Land Reforms Act and further in the alternative whether he was a deemed tenant within the meaning of Section 4 of the Act. It is relevant to quote here the said two Sections i.e. Section 2(34) and Section 4. The said two Sections read as follows :
'Section 2(34) 'tenant' means an agriculturist (who cultivates personally the land he holds on lease) from a landlord and includes -
(i) a person who is deemed to be a tenant under Section 4;
(ii) a person who was protected from eviction from any land by the Karnataka Tenants (Temporary Protection from Eviction) Act, 1961;
(iia) A person who cultivates personally any land on lease under a lease created contrary to the provisions of Section 5 and before the date of commencement of the Amendment Act;)
(iii) a person who is a permanent tenant;and
(iv) a person who is a protected tenant.
Explanation - A person who takes up a contract to cut grass, or to gather the fruits or other produce of any land, shall not on that account only be deemed to be a tenant;).'
'Section 4. Persons to be deemed tenants - A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not-
(a) a member of the owner's family, or
(b) a servant or a hired labourer on wages payable in cash or kind but not in crop share cultivating the land under the personal supervision of the owner or any member of the owner's family, or
(c) a mortgagee in possession:
Provided that if upon an application made by the owner within one year from the appointed day
(i) the Tribunal declares that such person is not a tenant and its decision is not reversed on appeal, or
(ii) the Tribunal refuses to make such declaration but its decision is reversed on appeal.
Such person shall not be deemed to be a tenant.'
11. We have to examine the above provisions of law and try to find out whether the original declarant the father of the petitioners No. 1 a to 1d would come within the meaning of either of the provisions to be called as a tenant as on 1.3.74, in my considered view, he does not fit into either of the provisions as above, for his name came to be mutated as long back as in the year 1956 and in the process his name was deleted as a permanent tenant and that, that entry remained unchallenged even to this day and that thereafter, even if he had cultivated the subject land it cannot be construed in law that he was cultivating the subject land as a tenant. As a matter of fact, in the year 1971 while he had resorted to O.S.No. 49/71, the petitioner had sought for the possession of the subject land admittedly from the hands of the owner, the father of the Respondents No. 3a and 3b. If his possession were lawful, there was no reason for him to seek possession of the subject land from the father of the Petitioners No. 1a to 1d in this suit. Even if it is true that he was cultivating the land from the year 1967 onwards, it cannot be said that he had cultivated the subject land as a tenant or his possession was lawful. In my considered view, such a cultivation by him was only as a tresspasser and nothing beyond. If that is so, he cannot fit into the definition of tenant within the meaning of Section 2(34). He is neither fit to be called deemed tenant within the meaning of Section 4 of the Act, for he was not lawfully cultivating the subject land as a deemed tenant. If that is so, the filing of Form No. 7 for grant of occupancy right by the original declarant was totally a misconceived one and therefore, in my considered view the rejection of the claim of the petitioners by the Land Tribunal in passing the impugned order appears to be just and proper.
12. In that view of the matter, I do not find any merit in the instant Writ Petition. Therefore, the same is liable to be dismissed.
13. In the result, the impugned order dated 7.11.92 passed by the Respondent No. 1 - Land Tribunal, Haveri, Dharwad District, in No. TAN.OCP.SR-6/Harlahalli, whereby the Land Tribunal had rejected the claim of the petitioners in respect of 4 acres 34 guntas in Survey No. 67 of Harlahalli village, Haveri Taluk is confirmed.
14. The Writ Petition is accordingly dismissed. The Rule discharged.
15. In view of the above order, the office is directed to return the original records of the Tribunal now on the case file of this Court to the Land Tribunal, Haveri, Dharwad District, at an early date, of course after the expiry of the Appeal time.
16. The office is further directed to send a copy of this order to the Principal Munsiff,. Haveri, Dharwad District in view of the fact that O.S.No. 49/71 is pending on his file.