ORDER
K. Ramanna, J.
1. This writ petition is filed by the petitioners 1 to 5 challenging the order dated 28-3-1988 passed by the Land Tribunal-respondent 2 in Case No. KLR/Hanamanal/SR-12 granting occupancy rights in favour of respondents 3 and 4 in respect of land bearing Sy. No. 148, Block No. 153 measuring an extent of 15 acres 27 guntas situated at Hanamanal Village, on the ground that the order passed by the Tribunal is against the settled principles of law and respondents 3 and 4 who had purchased the said land from one Gangadharappa in the year 1971 is not entitled to get any occupancy rights. Therefore, the impugned order under challenge is liable to be set aside.
Initially, the petitioners herein filed an appeal under Section 118 of the Karnataka Land Reforms Act, 1961, before the Land Reforms Appellate Authority, Dharwad in L.R.A. No. 194 of 1988. During the pendency of the appeal, an amendment was brought to the Karnataka Land Reforms Act in 1990 and the Land Reforms Appellate Authority was abolished. Therefore, the petitioners herein filed a Civil Petition No. 1236 of 1990 praying to convert the appeal into a writ petition. This Court allowed the civil petition by converting the appeal into instant writ petition.
2. Heard learned Counsel for the petitioners and learned High Court Government Pleader for respondents 1 and 2 and learned Counsel for respondents 3 and 4.
3. Learned Counsel for the petitioners submit that respondents 3 and 4 had purchased the land bearing Sy. No. 148, Block No. 153 measuring 15 acres 27 guntas of Hanamanal Village, for a sum of Rs. 15,000/- on 26-6-1971. As on 1-3-1974, they were cultivating the said land as owners. Therefore, Form 7 filed by them for granting occupancy rights was not at all maintainable and the Tribunal has totally erred in coming to the conclusion that respondents 3 and 4 were tenants. Hence, the writ petition be allowed by setting aside the impugned order.
4. In support of his contentions, learned Counsel for the petitioners has relied upon the decision in Shivappa NeelappaKalli and Anr. v. State of Karnataka and Ors. ILR 2003 Kar. Sh. N. 8, wherein, it has been held that:
A true owner of the land cannot claim occupancy rights for his own land and the Land Tribunal cannot grant the same.
5. On the other hand, the learned Counsel for respondents 3 and 4 contended that prior to purchasing of the land, respondents 3 and 4 were cultivating the land as tenants. The land in question was mortgaged by one Fakirappa, the adopted son of Toggi family in favour of Gangadharappa, even though he was not the absolute owner of the said property. In the land bearing Sy. No. 148, Block No. 153, a portion of the house was given to late Neelagangawwa for maintenance under the Maintenance Deed. Therefore, the record of rights register discloses that in the year 1939-40 upto 1973-74, respondents 3 and 4 were cultivating the said land as tenants. Therefore, the Tribunal was right in granting occupancy rights. Further, it is contended that since Fakirappa, who is the adopted son of Toggi family failed to pay the amount and got the property redeemed, the said Gangadharappa filed L.C. No. 206 of 1933 and L.C. No. 68 of 1932 before the Civil Court to the effect and a decree was passed. Further, one Gangadhar Korli filed an execution petition and in the execution petition, he was permitted to participate in the auction to bid the property. Accordingly, he had purchased the said land in the Court auction. Thereafter, respondents 3 and 4 purchased the same under a registered sale deed, but their possession of the land was continued as tenants from the year 1939 upto 1973-74. Therefore, they are entitled to have the occupancy rights in their favour. Further, it is submitted that since Fakirappa and others have filed a suit for setting aside the auction sale dated 10-10-1936, the rights of respondents 3 and 4 were protected under Section 133 of the Land Reforms Act. Therefore, even if the earlier sale deeds dated 10-10-1936 and 26-6-1971 were set aside, they continued to be the tenants of the original owner Neelagangawwa. Therefore, the Tribunal was right in granting occupancy rights in favour of respondents 3 and 4. Hence, the present writ petition filed by the petitioners is not at all maintainable and the same is liable to be dismissed.
6. In support of his contentions, the learned Counsel for respondents 3 and 4, has relied upon a decision in the case of Bhimaji Virupaxa Patil v. Kashappa Veerabhadrappa Javali and Anr. 1967(1) Mys. L.J. 10 (DB) wherein it has been held that:
A tenant of a female member of a Hindu family to whom the land was granted for maintenance also cultivates lawfully and would be a deemed tenant under Section 4 of the Bombay Tenancy and Agricultural Lands Act, 1948.
Further, he has also relied on another decision Eregowda v. State of Karnutaka 1980(2) Kar. L.J.Sh.N. 14(DB), wherein it has been held that:
If a person had been a tenant of the land even prior to his purchase of the land, the lease would be extinguished if such purchase was valid, as there would be a merger of the interest of the landlord and that of the tenant. If the sale was invalid for any reason, the purchaser's right as a tenant, if any, would not be extinguished and it would continue to subsist, even if there was a valid sale in favour of another.
7. Further, it is submitted that in view of the judgment passed by the Division Bench of this Court in R.F.A. No. 41 of 1997, dated 23-9-1987, the decree passed by the Civil Court was confirmed and to some extent the rights of respondents 3 and 4 have been confirmed, subject to the result of the order of the Tribunal with regard to the tenancy. Hence, the Tribunal has rightly granted occupancy rights and therefore, the present petition is liable to be dismissed.
8. I have carefully examined the records. It is seen that the land in question bearing Block No. 153 (Sy. No. 148) measuring 15 acres 27 guntas and Block No. 141 (Sy. No. 153) were situate in the same village and the house bearing VPC No. 373 situate at Uppin Betageri Village belongs to Toggi family. Both Parappa Toggi and Mallappa Toggi had no issues and they expired leaving behind widows-Dundawa W/o Parappa and Neelagangawwa W/o Mallappa. Therefore, Fakirappa-father of petitioner 1 was taken in adoption to Toggi family. It is also seen from the records that Sy. No. 148 (Block No. 153) and a portion of house were given as maintenance to Neelagangawwa under a Maintenance Deed. During her lifetime, she leased out the said land in favour of respondents 3 and 4 in the year 1948 and they were continued to be in possession of the land upto 1974 as protected tenants. It is also clear from the records of the year 1939-40 upto 1973-74 that they were cultivating the land and their names appeared in the cultivators' column. But the said property was mortgaged by the adoptive son of Toggi family viz., father of the petitioner 1 in favour of Gangadharappa. He was unable to redeem the property by paying the amount. Thereafter, late Gangadharappa filed a suit and it was decreed, he had purchased the said, land in an auction sale on 10-10-1936 and through him, respondents 3 and 4 herein purchased the same in the year 1971. But the records show that late Fakirappa-father of petitioner 1 filed a suit, which came to be decreed, was challenged before this Court. This Court also dismissed the appeal confirming the judgment and decree passed by the Court below. Considering the fact that even if the sale deeds dated 10-10-1936 and 26-6-1971 are set aside, the right of tenancy subsists from the year 1939-40 upto 1973-74. It is crystal clear that respondents 3 and 4 were protected tenants, since they were cultivating the said land as tenants under Neelagangawwa. Ths Tribunal has rightly granted occupancy rights in favour of respondents 3 and 4. Therefore, I do not find any good reasons to interfere with the impugned order under challenge.
Hence, the writ petition fails and the same is hereby dismissed, confirming the order passed by the Land Tribunal, Dharwar, in Case No. KLR/Hanamanal/SR/12, dated 28-3-1988.