Mohan Balaku Patil & Ors. Vs. Krishonji Bhaurao Hundre (dead) by Lrs.
EmailAppeal: Civil Appeal No. 4785 of 1994
(From the Judgment and Order dated 17.6.93 of the Karnataka High Court in C.R.P.No. 4344 of 1987)
(From the Judgment and Order dated 17.6.93 of the Karnataka High Court in C.R.P.No. 4344 of 1987)
Petitioner: Mohan Balaku Patil & Ors.
Respondent: Krishonji Bhaurao Hundre (dead) by Lrs.
Apeal: Civil Appeal No. 4785 of 1994
(From the Judgment and Order dated 17.6.93 of the Karnataka High Court in C.R.P.No. 4344 of 1987)
(From the Judgment and Order dated 17.6.93 of the Karnataka High Court in C.R.P.No. 4344 of 1987)
Judges: Mr. S.P.BHARUCHA & S.RAJENDRA BABU, JJ.
Date of Judgment: Jan 28, 1999
Appearances:
Mr. S.B.Wad, Senior Advocate, A.S. Deshpande, Ashish Wad, Manoj Wad, Mrs. J.S.Wad, Advocates with him for the appellants.
Mr. S.S.Javali, Senior Advocate, E.C.Vidya Sagar, Advocate with him for the Respondent.
Mr. M.Veerappa and K.H.Nobin Singh, Advocates for State.
Head Note:
LAND LAWS
Karnataka Land Reforms Act, 1961
Karnataka Land Reforms Act, 1961
Section 45, 48-A, 133 – Occupancy rights – Grant of – Property found by Tribunal being cultivated by appellants – Also actual possession found – Respondent admitting construction of building on land by appellants – Also admitting payment of electricity bills for using pump-set for irrigation – Original owner also shown to have issued notice to predecessors for vacating – Subsequent entries in Record of Rights showing owner in posses-sion – Presumption – If can be validly raised. Held that said presumption in respect of entries made in record of rights, stood displaced by finding of fact recorded that appellants were in possession and were cultivating land. Orders of High Court, up-setting the orders of Land Tribunal granting occupancy right, set-aside. (Paras 2, 3)
JUDGEMENT:
Rajendra Babu, J.
1. The appellants before us made a claim for registration of occupancy rights under Section 45 of the Karnataka Land Reforms Act, 1961 (thereinafter referred to as ‘the Act’) before the Land Tribunal in a proceeding initiated under Section 48-A of the Act. The Tribunal by an order made on April 24, 1981 upheld the claim made by the appellants. The appellants and the respondent laid evidence. The Tribunal noticed that the mother of the appellants stated that the land in dispute was being cultivated by her husband, Balku Patil, over 30 to 35 years as a tenant and now it is in her possession and she was paying a rental of 6 bags of paddy and Rs. 50/-. The respondent deposed that he has purchased the property in dispute for a consideration of Rs. 4,000/- and he has been in possession of the land in question and has paid the land revenue thereof. The Tribunal, in order to ascertain as to who was in possession on the date on which the Act came into force, i.e., March 1, 1974, made a spot enquiry on March 28, 1981. It was found that land was being cultivated by growing chilly, sugar cane, potato etc. which were standing on the land and on local enquiry it was also found that the property in dispute was being cultivated by the appellants and they have actually been in possession of the same. The Tribunal noticed that a receipt dated April 10, 1950 had been issued by the owner of the land and Kabulayat had also been made on the same date. Subsequently in the year 1956 the notice has been issued calling upon the tenant to give up possession of the land as the landlord require the same bonafide for his own cultivation. The documents thus indicated that the property in dispute was tenanted land. Subsequently in the record of rights in the year 1957 the name of Bharama, brother of the father of the appellant was deleted and it was shown that the land was under the personal cultivation of the owner. That entry did not show as to the circumstances in which the change was effected. The Tribunal found that the ap-pellants were in actual possession of and were, in fact, culti-vating the land and that there was material to show that the said land was tenanted land notwithstanding entries made in the Reve-nue records.
2. The Tribunal concluded that the property in dispute was in actual possession of the appellants and they have been cultivat-ing the same since many years notwithstanding the subsequent entries in the Record of Rights. On appeal to the District Land Reforms Appellate Authority, the order made by the Land Tribunal was reversed and the appellants were found not to be lawful tenants of the land and set aside the order made by the Land Tribunal granting occupancy rights to the mother of the appell-ants. In reaching this conclusion, the appellate authority did find that the possession of the land had been with the appell-ants. This was admitted by the respondent. It is also admitted by the respondent that the appellants had constructed a building on the land in dispute and had been paying electricity bills in respect of the charges arising for the electric pump set used for irrigating the land. However, the appellate authority found that the appellants have failed to establish that when their father and Bharma were residing as members of the joint family; that the disputed land was taken on lease; that in the partition of 1945 that land was allotted to the share of their father; and, that regarding the quantum of rent there had been some discrepancy in the evidence tendered by the mother, Sonu Bai. While one started that the rent of four bags of paddy and Rs. 50/- was paid, Sonu Bai started that six bags and Rs. 50/- was paid as rent and that on the basis of the record of rights showed that the appellants had not been cultivating the land and the respondent had been cultivating the land continuously from 1957.
3. The High Court, on a revision petition field against the order made by the appellate, authority agreed with the findings of the appellate authority and dismissed the revision petition.
4. It appears to us that the appellate authority could not have placed any reliance on the subsequent revenue records inasmuch as the appellants had constructed the building on the land in disp-ute; that the electricity bills had been paid by them; that the land was in their possession. In the face of this finding of fact the appellate authority could not raise the presumption under Section 133 of the Act that the entries made in the record of rights was correct. When a finding of fact had been recorded that the appellants had been in possession it will be startling to hold that the respondent was himself cultivating the land. The rent paid by the appellants to the respondent and the partition in their family had no bearing on the question of possession of the land and cultivation thereof. When in fact the Tribunal made local enquiry by spot inspection and had come to the conclusion that the appellants were in possession that factor should have weighed with the appellate authority, particularly in the face of the admission made by the respondent that the appellants had constructed the building on the land and were paying charges in respect of the electric pump set used for irrigating the land and ought to have held that the appellants were cultivating the land. In addition, the land in question was shown not to be cultivated by the respondent as the respondent was residing nowhere near the land but at a far away place and that the land was not culti-vated personally by the owner and the persons cultivating the land were not members of their family nor there was any evidence that the appellants were servants or hired labours on wages and ought to have on that basis held the appellants as deemed tenant in respect of the land. The presumption arising under Section 133 of the Act in respect of the entries made in the record of the rights stood displaced by the finding of fact recorded that the appellants were in actual possession of the land and were culti-vating the same. In the face of such an admission made by the respondent it is difficult to accept the finding recorded by the appellate authority as affirmed by the High Court that in view of the entries made in the record of rights the appellants could not be stated to be in possession of the land on the relevant date nor was cultivating the same.
5 In this view of the matter, we set aside the order made by the appellate authority as affirmed by the High Court in revision and restore the order made by the Land Tribunal. The appeal is thus accordingly allowed. Considering the circumstances of the case, we will direct the parties to bear their respective costs.
1. The appellants before us made a claim for registration of occupancy rights under Section 45 of the Karnataka Land Reforms Act, 1961 (thereinafter referred to as ‘the Act’) before the Land Tribunal in a proceeding initiated under Section 48-A of the Act. The Tribunal by an order made on April 24, 1981 upheld the claim made by the appellants. The appellants and the respondent laid evidence. The Tribunal noticed that the mother of the appellants stated that the land in dispute was being cultivated by her husband, Balku Patil, over 30 to 35 years as a tenant and now it is in her possession and she was paying a rental of 6 bags of paddy and Rs. 50/-. The respondent deposed that he has purchased the property in dispute for a consideration of Rs. 4,000/- and he has been in possession of the land in question and has paid the land revenue thereof. The Tribunal, in order to ascertain as to who was in possession on the date on which the Act came into force, i.e., March 1, 1974, made a spot enquiry on March 28, 1981. It was found that land was being cultivated by growing chilly, sugar cane, potato etc. which were standing on the land and on local enquiry it was also found that the property in dispute was being cultivated by the appellants and they have actually been in possession of the same. The Tribunal noticed that a receipt dated April 10, 1950 had been issued by the owner of the land and Kabulayat had also been made on the same date. Subsequently in the year 1956 the notice has been issued calling upon the tenant to give up possession of the land as the landlord require the same bonafide for his own cultivation. The documents thus indicated that the property in dispute was tenanted land. Subsequently in the record of rights in the year 1957 the name of Bharama, brother of the father of the appellant was deleted and it was shown that the land was under the personal cultivation of the owner. That entry did not show as to the circumstances in which the change was effected. The Tribunal found that the ap-pellants were in actual possession of and were, in fact, culti-vating the land and that there was material to show that the said land was tenanted land notwithstanding entries made in the Reve-nue records.
2. The Tribunal concluded that the property in dispute was in actual possession of the appellants and they have been cultivat-ing the same since many years notwithstanding the subsequent entries in the Record of Rights. On appeal to the District Land Reforms Appellate Authority, the order made by the Land Tribunal was reversed and the appellants were found not to be lawful tenants of the land and set aside the order made by the Land Tribunal granting occupancy rights to the mother of the appell-ants. In reaching this conclusion, the appellate authority did find that the possession of the land had been with the appell-ants. This was admitted by the respondent. It is also admitted by the respondent that the appellants had constructed a building on the land in dispute and had been paying electricity bills in respect of the charges arising for the electric pump set used for irrigating the land. However, the appellate authority found that the appellants have failed to establish that when their father and Bharma were residing as members of the joint family; that the disputed land was taken on lease; that in the partition of 1945 that land was allotted to the share of their father; and, that regarding the quantum of rent there had been some discrepancy in the evidence tendered by the mother, Sonu Bai. While one started that the rent of four bags of paddy and Rs. 50/- was paid, Sonu Bai started that six bags and Rs. 50/- was paid as rent and that on the basis of the record of rights showed that the appellants had not been cultivating the land and the respondent had been cultivating the land continuously from 1957.
3. The High Court, on a revision petition field against the order made by the appellate, authority agreed with the findings of the appellate authority and dismissed the revision petition.
4. It appears to us that the appellate authority could not have placed any reliance on the subsequent revenue records inasmuch as the appellants had constructed the building on the land in disp-ute; that the electricity bills had been paid by them; that the land was in their possession. In the face of this finding of fact the appellate authority could not raise the presumption under Section 133 of the Act that the entries made in the record of rights was correct. When a finding of fact had been recorded that the appellants had been in possession it will be startling to hold that the respondent was himself cultivating the land. The rent paid by the appellants to the respondent and the partition in their family had no bearing on the question of possession of the land and cultivation thereof. When in fact the Tribunal made local enquiry by spot inspection and had come to the conclusion that the appellants were in possession that factor should have weighed with the appellate authority, particularly in the face of the admission made by the respondent that the appellants had constructed the building on the land and were paying charges in respect of the electric pump set used for irrigating the land and ought to have held that the appellants were cultivating the land. In addition, the land in question was shown not to be cultivated by the respondent as the respondent was residing nowhere near the land but at a far away place and that the land was not culti-vated personally by the owner and the persons cultivating the land were not members of their family nor there was any evidence that the appellants were servants or hired labours on wages and ought to have on that basis held the appellants as deemed tenant in respect of the land. The presumption arising under Section 133 of the Act in respect of the entries made in the record of the rights stood displaced by the finding of fact recorded that the appellants were in actual possession of the land and were culti-vating the same. In the face of such an admission made by the respondent it is difficult to accept the finding recorded by the appellate authority as affirmed by the High Court that in view of the entries made in the record of rights the appellants could not be stated to be in possession of the land on the relevant date nor was cultivating the same.
5 In this view of the matter, we set aside the order made by the appellate authority as affirmed by the High Court in revision and restore the order made by the Land Tribunal. The appeal is thus accordingly allowed. Considering the circumstances of the case, we will direct the parties to bear their respective costs.
