1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 3
RD
DAY OF SEPTEMBER 2012
BEFORE
THE HONBLE MR.JUSTICE B.S.PATIL
W.P.No.36364/2004 (LR-)
BETWEEN:
Raju M.Hegde,
S/o Mahabala Hegde,
R/o Heggunje Village,
Doddamane, Mandarti Post,
Udupi Taluk & Dist. PETITIONER
(By Sri M.R.Rajagopal, Adv.)
AND:
1. The Land Tribunal,
Udupi,
Rep.by its chairman,
Udupi Taluk & Dist.
2. Sri H.Bhaskar Hegde,
Major,
S/o K.Nandiyappa Hegde,
R/o Chavadi Mane,
Heggunje Village,
Mandarti Post,
Udupi Taluk & Dist. RESPONDENTS
(By Sri Shashidhar S.Karmadi, G.P. for R1,
Sri S.Prakash Shetty, Adv. for R2)
2
This Writ Petition is filed under Article 226 & 227 of the
Constitution of India, praying to quash the order passed by the
1
st
respondent dated 22.1.2004 vide Annexure-B and etc.
This petition coming on for further hearing this day, the
Court made the following:
ORDER
1. The order dated 22.1.2004 passed by the land Tribunal,
Udupi, conferring occupancy rights in favour of the 2
nd
respondent in respect of 4 items of lands situated in Heggunje
Village of Udupi Taluk is called in question in this writ petition.
2. The facts leading to this writ petition, stated in nutshell,
are that the petitioner is the owner of the agricultural properties
which are described in the petition schedule. The 2
nd
respondent filed application in Form No.7 under Section 48-A of
the Karnataka Land Reforms Act, 1961 (for short the Act)
seeking grant of occupancy rights. It was contended by the
petitioner that the applicant who had sought for grant of
occupancy rights was a mortgagee with possession of the
schedule property and therefore he could not maintain an
application under Section 48-A of the Act as he was not a
tenant in cultivation of the land as on the appointed date, i.e.,
01.03.1974.
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3. On a previous occasion, the Tribunal had rejected the
application by passing an order dated 22.10.1981. This was
challenged in writ petition. The writ petition was allowed and
the matter was remanded. Thereafter, the Tribunal having
conducted fresh enquiry granted occupancy rights in favour of
the 2
nd
respondent on 25.06.1986. This was challenged by the
petitioner before this Court. Again, the writ petition was allowed
and the order passed by the Tribunal was quashed remanding
the matter for fresh disposal. Thereafter, the Tribunal has
conducted a fresh enquiry and has passed the impugned order.
The Tribunal has found that the disputed lands were held by
the 2
nd
respondent as tenant with effect from 1966 and on
19.04.1968 usufructuary mortgage had been created by the
land owner in favour of the tenant, therefore, as it was clear
that the 2
nd
respondent was cultivating the land as tenant
before the mortgage was created, he was entitled for grant of
occupancy rights.
4. Learned counsel appearing for the petitioner
Sri.M.R.Rajagopal contends that though the 2
nd
respondent was
a tenant inducted into the land during the year 1966, in view of
the admitted fact that usufructuary mortgage was created on
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19.04.1968 in favour of the tenant which was in force for a
period of 10 years up to 1978, as on the appointed date
01.03.1974, there was no relationship of landlord and tenant
and therefore the 2
nd
respondent could not have maintained an
application under Section 48-A of the Act seeking grant of
occupancy rights.
5. Learned counsel for the petitioner refers to Section 4 of
the Act to contend that a mortgagee in possession is not a
deemed tenant though he may be cultivating the land belonging
to the owner. It is his further submission that if Section 4 of the
Act is read along with Section 26, it will be clear that in the
present case as the mortgage was in existence as on the
appointed date 01.03.1974 the relationship of landlord and
tenant was in abeyance and what was in existence was the
relationship of a mortgagor and mortgagee and therefore, the
land could not be regarded as tenanted land as on the
appointed date. He further points out that Section 44 of the Act
will come into picture only if the land was a tenanted land as on
01.03.1974 resulting in vesting of the land in the State
Government. He also refers to Section 5 of the Act to contend
that there is prohibition for creation of any lease after the date
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of the commencement of the amendment Act, therefore, if
Section 26 is understood keeping in mind Sections 4 and 5 of
the Act, it cannot be held that the mortgagee put in possession
of the land prior to 01.03.1974 can claim that he is entitled for
grant of occupancy rights as a tenant.
6. Sri. S. Prakash Shetty, learned counsel appearing for the
2
nd
respondent submits that the effect of Section 26 of the Act
is that the lease created by the land owner prior to the
appointed date would not become extinct by reason of creation
of a mortgage in favour of the tenant. His submission is that
both the rights as mortgagee and lessee could be held at the
same time in respect of the land as one right is neither higher
nor lesser than the other and if so understood it would mean
that the tenancy does not cease on the creation of usufructuary
mortgage. In support of his contention he has placed reliance
on the Division Bench judgment of this court in the case of
MELEGOWDA vs. GAIBU SAB AND ANOTHER ILR 1978 KAR
PAGE 423 and MALLAPPA BHARAMAPPA MADAR vs.
BASAVANTHAPPA ILR 1994 KAR 804. He has also relied upon
the judgments in the case of BASAPPA K.K. AND ANOTHER VS.
LAND TRIBUNAL, SOMWARPET AND ANOTHER 1976(1) KLJ
6
PAGE 274 and SURESH S. RAO vs LAND TRIBUNAL, BELGAUM
AND OTHERS ILR 2007 KAR 2409.
7. Having heard the learned counsel for the parties and on
perusal of the entire materials on records, the only point that
requires to be considered is:
Whether the subsequent creation of usufructuary
mortgage by the petitioner-owner of the land during 1968 in
favour of the 2
nd
respondent-tenant in respect of the land in
question brings about cessation of the relationship of landlord
and tenant as on the appointed date so as to disentitle the 2
nd
respondent from successfully claiming occupancy rights under
the provisions of the Act?
8. The relevant provisions of the Act which are required to
be considered to address the question raised above are Section
2(34), Section 4, Section 26 and Section 44. The definition of
the word tenant is contained in Section 2(34) of the Act. It
reads as under:
Tenant, means an agriculturist who cultivates
personally the land he holds on lease from a
landlord and includes
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(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;
(ii-a) 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.
9. Section 4 deals with persons to be deemed tenants. It
reads as under:
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 owners 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 owners family, or
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(c) a mortgagee in possession:
Provided that if upon an application made by the
owner within one year from the appointed day
[xxxxxx]
(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
10. It is thus clear from the above definition of the term
tenant and Section 4 which deals with deemed tenant that if
the person is lawfully cultivating any land belonging to another
person then he shall be deemed to be a tenant provided such
person is not a mortgagee in possession. Section 26 of the Act
states that tenancy shall be in abeyance during the period
when the usufructuary mortgage in favour of a tenant is in
existence. It reads as under:
If any land is mortgaged by a landlord by way of a
usufructuary mortgage to tenant cultivating such
land, the tenancy of such land shall be in abeyance
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during the period the mortgage subsists. After the
expiry of the said period it shall be lawful to the
tenant to continue to hold the land on the terms
and conditions on which he held it before the
mortgage was created.
11. In terms of Section 44 the tenanted lands in possession
shall vest in the State Government with effect from the
appointed date.
12. Section 14 of the Act, prior to amendment, enacted a
provision for resumption of the land. It reads as under:
14. Resumption of land from tenants (1)
Notwithstanding anything contained in Sections 22
and 43, but subject to the provisions of this section
and of sections 15, 16, 17, 18, 19, 20 and 41, a
landlord may, if he bonafide requires land, [other
than land referred to in the first proviso to clause
(29) of sub-section (A of Section 2),
(i) for cultivating personally, or
(ii) for any non-agricultural purpose
file with the Tribunal a statement indicating the
land or lands owned by him and which he intends to
resume and such other particulars as may be
prescribed. On such statement being filed, the
Tribunal shall, as soon as may be, after giving an
opportunity to be heard to the landlord and such of
his tenants and other persons as may be affected,
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and having due regard to contiguity, fertility and fair
distribution of lands, and after making such other
inquiries as the Tribunal deems necessary,
determine the land or lands which the landlord shall
be entitled to resume and shall issue a certificate to
the landlord to the effect that land or lands specified
in such certificate has been reserved for resumption;
and thereupon the right to resume possession shall
be exercisable only in respect of the lands specified
in such certificate and shall not extend to any other
land.
Explanation Subject to such rules as may be
prescribed, the Tribunal within the jurisdiction of
which the greater part of the land held by the
landlord is situated shall be the Tribunal competent
to issue a certificate under this Section.
(2) (a) In respect of tenancies existing on the
appointed day, the statement under sub-section (1)
shall be filed within fifteen months from that day.
(b) In respect of tenancies created after the
appointed day, the statement under sub-section (1)
shall be filed within five years from the date of
creation of the tenancy:
Provided that where an application has been
made by the tenant under Section 58 before such
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statement is filed, the Tribunal shall deal with the
statement along with such application.
Provided further that in the case of a landlord
who is subject to any disability, the statement under
sub-section (1) shall be filed within the period
specified in clause (a) or (b), as the case may be, by
the guardian, manager or other person in charge of
the property of such person.
(3) Same as provided in sub-section (7), if
no statement is filed within the period specified in
sub-section (2), all the land held by the landlord
concerned, and where such statement has been
filed, lands other than lands in respect of which the
certificate under sub-section (1) is issued, shall be
deemed to be non-resumable lands leased to tenants
for purposes of this Act.
(4) In respect of tenancies existing on the
appointed day, as soon as may be after the expiry of
fifteen months from the appointed day, and in
respect of tenancies created after the appointed day,
as soon as may be after the statement under sub-
section (1) is filed, the Tribunal shall after such
inquiry as it deems fit, determine the lands which
will be non-resumable lands leased to tenants for
purposes of this Act.
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(5) Where a certificate is issued in respect
of any land under sub-section (1),
(a) in the case of tenancies existing on the
appointed day, the landlord shall make an
application to the Tribunal for possession of such
lands within twelve months from the date of issue of
the certificate, but the tenants shall not be
dispossessed before the 31
st
March of the calendar
year succeeding the calendar year in which the
application for possession is made;
(b) in the case of tenancies created after the
appointed day, the landlord shall not be entitled to
resume the land before the expiry of five years from
the date of creation of the tenancies concerned and
the tenants shall not be dispossessed before the 31
st
March of the calendar year succeeding the calendar
year in which the application for possession is
made.
(6) Notwithstanding anything contained in
sub-section (5), where the landlord belongs to any of
the following categories, namely:-
(i) a minor;
(ii) a person incapable of cultivating land by
reason of any physical or mental
disability,
(iii) a widow;
(iv) an unmarried woman,
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then, the application to the Tribunal for possession
of land shall be made, within fifteen months from the
appointed day one or year from the date on which;
(a) in the case of category (i), he attains
majority;
(b) in the case of category (ii), he ceases to
be subject to such physical or mental
disability:
(c) in the case of category (iii), she remarries;
(d) in the case of category (iv), she marries:
whichever is later.
Provided that where land is held by two or more
joint landlords, the provisions of this sub-section shall
not apply unless all such landlords belong to the
categories specified in clauses (i) and (ii) and the
application shall be made within one year from the
date on which any one of such landlords ceases to
belong to any such category and an application by any
one of the joint holders shall be deemed to be a valid
application on behalf of all the joint holders;
Provided further that where a person belonging
to any of the categories specified in clause (i) or (ii) of
this sub-section, is a member of a joint family, the
provisions of this sub-section shall not apply unless all
the members of the joint family belong to the
categories specified in clauses (i) and (ii), but where
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the share in the joint family of a person belonging to
any of such categories has been separated by metes
and bounds before the filing of the statement under
sub-section (1), if the Tribunal on inquiry is satisfied
that the share of such person in the land separated,
having regard to the area, assessment, classification
and value of the land is in the same proportion as the
share of that person in the entire joint family property,
and not in a larger proportion, the provisions of this
sub-section shall be applicable to such person.
(7) Notwithstanding anything contained in the
preceding sub-sections, a landlord who is a small
holder, a widow or an unmarried woman may within
the period specified in sub-section (2), file a statement
before the Tribunal that he or she does not intend to
resume any land leased to a tenant and when any
such statement is filed, such small holder, widow or
unmarried woman shall not thereafter be entitled to
resume any such land, except with the previous
sanction of the Tribunal;
Provided that no sanction shall be given for
resumption of land by a small holder, widow or
unmarried woman under this sub-section before the
expiry of five years from the appointed day.
13. It is necessary to notice here that after the amendment
which has come into force with effect from 01.03.1974, this
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provision regarding resumption of the land has been omitted.
Prior to the said date, the landlord was entitled to resume the
land by following the procedure prescribed under Section 14. It
is also to be noticed that as per the scheme of the Act, tenancy
created could not be terminated except by following the
procedure prescribed under the Act. It is in this background the
question whether creation of usufructuary mortgage prior to the
date of the vesting disentitles the tenant to claim occupancy
rights assumes importance.
14. In the decision rendered by the Division Bench of this
Court in the case of MELEGOWDA vs. GAIBU SAB this Court has
categorically held by referring to the decision of the Supreme
Court in the case of SHAH MATHURDAS MAGANLAL AND CO. vs.
NAGAPPA SHANKARAPPA MALAGA - AIR 1976 SC 1565 that the
doctrine of merger will not apply to a case of lease followed by a
mortgage. In paragraph Nos.6 and 7 of the judgment rendered
in MELEGOWDA vs. GAIBU SABs case the Division Bench has
observed as under:
6. Section 26 of the Act modifies the provisions of
Section 111 of Transfer of Property Act insofar as
agricultural lands are concerned, to the extent it
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declares that the tenancy in the circumstances
referred to therein would be in abeyance during the
period the mortgage subsists.
7. The true effect of Section 26 of the Act is that the
anterior lease of agricultural land would not
become extinct by reason of the creation of a
mortgage in favour of the tenant but would become
dormant. The said provision confers right on the
mortgagee, who was a tenant earlier, to continue to
hold the land after the extinguishment of the
mortgage on the terms and conditions on which he
held it before the mortgage was created. In view of
the above express provision found in the statute it
has also to be held that no support can be derived
by the respondents from the decision of this Court
in Radhabai Balakrishna Despande vs.
Raghavendra Hanumantha Despande (3) in which it
has been held that the scope of enquiry by the
Tribunal constituted under the Act is limited to the
existing tenancy in dispute and not to the tenancy
that existed at remote past because by virtue of
Section 26 the tenancy continues to be in existence
though in abeyance and does not become
extinguished on the execution of the mortgage.
15. In the subsequent decision of another Division Bench in
MALLAPPA BHARAMAPPA MADAR vs. BASAVANTHAPPA it has
17
been held that Section 26 of the Act makes it very clear that if
any land is mortaged by a landlord by way of usufructuary
mortgage to a tenant cultivating such land, the tenancy of such
land will not cease and that after the expiry of the period of
lease it will be lawful to the tenant to continue to hold the land
on the terms and conditions on which he held it before the
mortgage was created. Further in paragraph 7 of the said
judgment after referring to the effect of the two judgments of the
Apex Court in the cases of GAMBANGI APPALASWAMY NAIDU
AND OTHER vs. BEHARA VENKATARAMANAYYA PATRO AIR
1984 SC 1728 and SHAH MATHURDAS MAGANLAL AND CO. vs.
NAGAPPA SHANKARAPPA MALAGA - AIR 1976 SC 1565, the
Division Bench has observed as under:
These two decisions make it clear that both
rights as mortgagee and lessee could be held at the
same time in respect of the same land and those
rights could be simultaneously held, one right is
neither higher nor lesser than the other. If that is
so, the provision of Section 26 of the Act could be
understood as to mean that the tenancy does not
cease on the creation of the usufructuary
mortgage.
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16. It is thus very clear that if tenancy is created of an
agricultural land under the provisions of the land Reforms Act,
the same cannot be unilaterllay terminated by the land owner.
Even the subsequent creation of usufructuary mortgage in
favour of a tenant will not extinguish the tenancy and the
relationship of landlord and tenant does not cease as the lease
does not get merged with that of mortgage. In such event, the
tenancy rights of the lessee continue to operate and the lessee
will be entitled to maintain an application under Section 48-A of
the Act claiming occupancy rights.
17. If this principle is applied to the facts of the present case,
it emerges that admittedly the 2
nd
respondent was a tenant of
the land prior to the date of commencement of the usufructuary
mortgage in his favour that is to say the tenancy of the 2
nd
respondent commenced with effect from 1966 whereas the
usufructuary mortgage was created in favour of the very tenant
by the land owner during the year 1968 for a period of ten
years. Therefore, as on 01.03.1974 both the lease and the
mortgage were in existence and there was no merger of the
lease with the mortgage. The fact that usufructuary mortgage
was in existence as on 01.03.1974 will not bring about the
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extinction of tenancy resulting in deprivation of the lessee from
availing the benefit conferred under the Act. The judgment of
the Division Bench in the case of MALLAPPA BHARAMAPPA
MADAR vs. BASAVANTHAPPA is very clear in this regard.
18. Though it is sought to be urged by the learned counsel for
the petitioner that in the facts of the said case the loan was
obtained by the land owner in a sum of Rs.100/- per year
between 1972 and 1983 for a period of 11 years towards the
land already under cultivation of the tenant from 1963 and that
distinguishes the facts of the present case, I am unable to
accept this distinction sought to be made out. What is
important is the fact that the land was a tenanted land and the
relationship of landlord and tenant existed before the
usufructuary mortgage was created. If the said factor is
established then by operation of Section 26 and in view of the
judgment of the Division Bench referred to above the tenant will
not lose his right to claim occupancy rights by establishing that
relationship of landlord and tenant continued as on
01.03.1974.
19. Insofar as the understanding of the provision contained
under Section 4 of the Act, it is clear that though a mortgagee
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in possession is not included in the definition of the term
deemed tenant, reading of the said provision along with Section
26 and the principle laid down in the two judgments of the
Division Bench will make it clear that if the tenancy was
already created, the subsequent creation of usufructuary
mortgage will not take away the tenancy rights of the lessee
over the agricultural land. Therefore, in such circumstances,
Section 4(c) cannot have the effect of extinguishing the rights of
a tenant by virtue of subsequent usufructuary mortgage created
by the landlord.
20. Similarly, the contention advanced by the learned counsel
for the petitioner based on Section 5 of the Act has no relevance
to the question raised before this Court. Section 5 of the Act
deals with prohibition of creation or continuation of lease after
the commencement of the amendment Act of 1974. In the case
on hand there is no creation or commencement of the lease as
the lease was created in the year 1966 and it continues by
operation of law even after the expiry of the usufructuary
mortgage. The parties do not create or continue the lease in the
instance case, it is by virtue of the provision contained under
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Section 26 of the Act such lease is continued. Therefore,
Section 5 has no application in such case.
21. For the above mentioned reasons, I am of the view that
the tenancy created by the land owner-petitioner in favour of
the 2
nd
respondent in the year 1966 is not extinguished nor is
the tenant precluded from maintaining an application claiming
occupancy rights merely because of the subsequent creation of
usufructuary mortgage by the petitioner land owner in favour of
the 2
nd
respondent during the year 1968. The Tribunal has
rightly come to the conclusion that the 2
nd
respondent was a
tenant in occupation of the land as on 01.03.1974 and was
entitled for grant of occupancy rights in respect of the petition
lands. No apparent illegality or error of jurisdiction can be
found in the order.
Hence, the writ petition being devoid of merits is
dismissed.
Sd/-
JUDGE
VP