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IN THE HIGH COURT OF DHARWAD BENCH

DATED THIS THE 14 TH DAY OF JANUARY, 2015

BEFORE

THE HON’BLE MR. JUSTICE ARAVIND KUMAR

WRIT PETITION NOS.42213-14/2002 [LR]

BETWEEN:

1. DUNDAPPA RAMAPPA SINCE DEAD BY LRS

(a)RAMAPPA S/O. DUNDAPPA KANKANAWADI, AGED 45 YEARS R/AT MUDALAGI VILLAGE TALUKA , DIST

2. KALLAPPA RAMAPPA KANKANAWADI SINCE DEAD BY LRS

(a)BHIMAPPA KALLAPPA KANKANAWADI AGED 60 YEARS SINCE DEAD BY LRS

2(a)(i) SMT.TIPPAVVA W/O KALLAPPA KANKANAWADI AGED 81 YEARS OCC: HOUSEHOLD R/O MUDALAGI, TQ: GOKAK, DISTRICT BELGAUM : 2 :

2(a)(ii) SMT.SIDDAVVA W/O BHIMAPPA KANKANAWADI AGED 61 YEARS, OCC: HOUSEHOLD R/O: MUDALAGI VILLAGE, TALUK GOKAK, DISTRICT BELGAUM

2(a)(iii) SMT.YALLAVVA W/O KEMPANNA ANTARGATTI AGED 45 YEARS, OCC: HOUSEHOLD R/O: MUDALAGI VILLAGE, TALUK GOKAK, DISTRICT BELGAUM

2(a)(iv) SMT.MAHADEVI W/O RAMAPPA ANTARGATTI AGED 40 YEARS, OCC: HOUSEHOLD R/O: MUDALAGI VILLAGE, TALUK GOKAK, DISTRICT BELGAUM

2(a)(v) SHRI.MALAPPA S/O BHIMAPPA KANKANAWADI AGED 38 YEARS, OCC: AGRICULTURE R/O: MUDALAGI VILLAGE, TALUK GOKAK, DISTRICT BELGAUM

2(a)(vi) SMT.BORAVVA W/O RAMAPPA ANTARGATTI AGED 37 YEARS, OCC: HOUSEHOLD R/O: MUDALAGI VILLAGE, TALUK GOKAK, DISTRICT BELGAUM : 3 :

2(a)(vii) SHRI.IRAPPA S/O BHIMAPPA AGED 35 YEARS, OCC: AGRICULTURE R/O: MUDALAGI VILLAGE, TALUK GOKAK, DISTRICT BELGAUM

2(a)(viii) SMT.RUKMAVVA W/O MANING VONGI AGED 25 YEARS, OCC: HOUSEHOLD R/O: MUDALAGI VILLAGE, TALUK GOKAK, DISTRICT BELGAUM

2(b) SRI.KENCHAPPA KALLAPPA KANKANAWADI AGED 52 YEARS, R/O: MUDALAGI VILLAGE, TALUK GOKAK, DISTRICT BELGAUM

2(b)(i)SMT.SONAWWA W/O KENCHAPPA KANKANAWADI AGED 55 YEARS, OCC: AGRICULTURE R/O: MUDALAGI TQ: GOKAK DISTRICT BELGAUM

2(b)(ii) MAYAPPA KENCHAPPA KANKANAWADI S/O KENCHAPPA KANKANAWADI AGED 40 YEARS, OCC: AGRICULTURE R/O: MUDALAGI TQ: GOKAK DISTRICT BELGAUM : 4 :

2(b)(iii)SHIVABASU KENCHAPPA KANKANWADI S/O KENCHAPPA KANKANAWADI AGED 37 YEARS, OCC: AGRICULTURE R/O: MUDALAGI TQ: GOKAK DISTRICT BELGAUM

2(b)(iv) SMT.MAHADEVI W/O BHIMAPPA AGED 35 YEARS OCC: AGRICULTURE R/O: KAPPALAGUTTI TQ: DISTRICT BELGAUM

2(b)(v) MALLAPPA KENCHAPPA KANKANAWADI AGED 31 YEARS, OCC: AGRICULTURE R/O: DHARAMATTI TQ. GOKAK DISTRICT BELGAUM

2(b)(vi)SMT.KAMALAXI W/O SHIVABASU UPPAR AGED 28 YEARS, OCC: AGRICULTURE R/O DHARAMATTI, TQ.GOKAK DISTRICT BELGAUM

2(b)(vii) SMT.MANJULA W/O SHIVARAJ RENTI AGED 25 YEARS, OCC: HOUSEHOLD R/O: CHINDHOI TQ. RAIBAG : 5 :

DISTRICT BELGAUM

2(b)(viii) SMT.TIPPAWWA W/O KALLAPPA KANKANAWADI AGED 75 YEARS, OCC: AGRICULTURE R/O: MUDALAGI TQ. GOKAK DISTRICT BELGAUM

2(c) NANJAPPA KALLAPPA KANKANAWADI AGED 52 YEARS, R/O: MUDALAGI VILLAGE, TALUK GOKAK, DISTRICT BELGAUM

2(d) SIDDAPPA KALLAPPA KANKANAWADI AGED 48 YEARS, R/O: MUDALAGI VILLAGE, TALUK GOKAK, DISTRICT BELGAUM

2(e) PARAVVA LAKKAPPA KANKANAWADI AGED 38 YEARS, R/O: MUDALAGI VILLAGE, TALUK GOKAK, DISTRICT BELGAUM

2(f) BASAPPA S/O LAKKAPPA KANKANAWADI AGED 22 YEARS, R/O: MUDALAGI VILLAGE, TALUK GOKAK, DISTRICT BELGAUM

2(g) RAMAPPA KALLAPPA KANKANAWADI : 6 :

AGED 30 YEARS, R/O: MUDALAGI VILLAGE, TALUK GOKAK, DISTRICT BELGAUM

3. SRI HOLEPPA PARAPPA TERDAL @ SHIVAPOOR SINCE DEAD BY LRS

3(a)PARAPPA S/O. HOLEPPA TERDAL @ SHIVAPOOR

3(a)(i) SMT.NAGAWWA W/O PARAPPA TERDAL AGED 48 YEARS, OCC: HOUSEHOLD R/O: MUDALAGI TQ: GOKAK DIST: BELGUAM

3(a)(ii)SMT.KAMALAWWA W/O ADIVEPPA BALIGAR AGED 42 YEARS, OCC: HOUSEHOLD R/O: MUDALAGI TQ: GOKAK DIST: BELGUAM

3(a)(iii) SMT.SHIBAYAWWA W/O SRISHAILA AGED 34 YEARS, OCC: AGRICULTURE R/O: MUDALAGI TQ: GOKAK DIST: BELGUAM

3(a)(iv) SRI.SHIVABASU S/O PARAPPA TERADAL AGED 30 YEARS, OCC: AGRICULTURE : 7 :

R/O: MUDALAGI TQ: GOKAK DIST: BELGUAM

3(a)(v) SRI.HANAMANT S/O PARAPPA TERDAL AGED 28 YEARS, OCC: AGRICULTURE R/O: MUDALAGI TQ: GOKAK DIST: BELGUAM

3(a)(vi)SRI.IRAPPA S/O PARAPPA TERDAL AGED 25 YEARS, OCC: AGRICULTURE R/O: MUDALAGI TQ: GOKAK DIST: BELGUAM

3(b)SMT.THANGEVVA W/O BASAPPA TERDAL AGED 40 YEARS R/O. MUDALAGI VILLAGE TALUKA GOKAK DIST BELGAUM

3(c)SMT.BORAVVA W/O BASAPPA ANGADI AGED 25 YEARS R/O: MUDALAGI VILLAGE, TALUK GOKAK, DISTRICT BELGAUM

3(d) BALAPPA HOLEPPA TERDAL @ SHIAPUR AGED 50 YEARS R/O. MUDALAGI VILLAGE TALUKA GOKAK DIST BELGAUM ..PETITIONERS : 8 :

(BY SRI.G.BALAKRISHNA SHASTRY & SRI.R.M.KULKARNI, ADVOCATES)

AND:

1. THE LAND TRIBUNAL GOKAK BY ITS CHAIRMAN GOKAK, DIST BELGAUM

2. STATE OF KARNATAKA REPRESENTED BY THE SECRETARY TO GOVERNMENT DEPARTMENT M.S.BUILDING DR. AMBEDKAR VEEDHI BENGALURU - 560 001

3. BANDO SRINIVAS DESAI SINCE DEAD BY LRS 3(a) SMT.PREMA W/O BANDO DESAI AGED 75 YEARS, OCC: HOUSEHOLD R/O: MUDALAGI TQ. GOKAK DISTRICT BELGAUM

3(b) TIMMANNA S/O BANDO DESAI AGED 54 YEARS, OCC: BUSINESS R/O: MUDALAGI TQ. GOKAK DISTRICT BELGAUM

3(c) ANNAYYA S/O BANDO DESAI AGED 45 YEARS, OCC: SERVICE : 9 :

R/O: MUDALAGI TQ. GOKAK DISTRICT BELGAUM

3(d) VITTAL S/O BANDO DESAI AGED 40 YEARS, OCC: AGRICULTURE R/O: MUDALAGI TQ. GOKAK DISTRICT BELGAUM

3(e)SUDIR S/O BANDO DESAI AGED 38 YEARS, OCC: SERVICE R/O: MUDALAGI TQ. GOKAK DISTRICT BELGAUM

3(f) HANAMANT S/O BANDO DESAI AGED 35 YEARS, OCC: AGRICULTURE R/O: MUDALAGI TQ. GOKAK DISTRICT BELGAUM

3(g) SMT.KAMALAXI W/O SRINIVAS KULKARNI AGED 48 YEARS, OCC: HOUSEHOLD R/O: TQ. CHIKKODI DISTRICT BELGAUM

4. SRI RAMACHANDRA S/O SRINIVAS DESAI SINCE DEAD BY LRS : 10 :

4(a) SMT.MALA W/O RAMACHANDRA DESAI AGED 65 YEARS, OCC: HOUSEWIFE R/O: MUDALAGI TQ: GOKAK, DISTRICT BELGAUM

4(b) SRI.KESHAV S/O RAMACHANDRA DESAI AGED 40 YEARS, R/O: MUDALAGI TQ: GOKAK, DISTRICT BELGAUM

4(c) SRI.VADIRAJ S/O RAMACHANDRA DESAI AGED 28 YEARS, R/O: MUDALAGI TQ: GOKAK, DISTRICT BELGAUM

5. SRI.ALLAPPA PAYAPPA DESAI SINCE DEAD BY LRS

5(a)KRISHNAGOUDA S/O ALLAPPA DESAI MAJOR, R/O HANAGUNDI VILLAGE TQ: JAMKHANDI, DISTRICT BAGALKOT

5(b)DADASAHEB S/O ALLAPPA DESAI SINCE DEAD BY LRS

5(b)(i) SMT.SUREKHA W/O DADASAHEB ALLAPPA DESAI MAJOR : 11 :

R/O: HANAGONDI VILLAGE TALUKA JAMKHANDI DISTRICT BAGALKOT

5(b)(ii) RAJU S/O DADASAHEB ALLAPPA DESAI MAJOR R/O: HANAGONDI VILLAGE TALUKA JAMKHANDI DISTRICT BAGALKOT

5(b)(iii) SUBBAWWA D/O DADASAHEB ALLAPPA DESAI MAJOR HANAGONDI VILLAGE, TALUKA JAMKHANDI DISTRICT BAGALKOT

5(c)SHANKARAGOUDA S/O ALLAPPA DESAI MAJOR, R/O HANAGUNDI VILLAGE TQ: JAMKHANDI, DISTRICT BAGALKOT. ..RESPONDENTS

(BY SRI.RAVI V. HOSMANI, AGA FOR R-1 & R-2, SRI.G.S.BHAT, ADVOCATE FOR R-3 & R-4, SRI.K.ANAND KUMAR, ADVOCATE FOR R-3(a to g) & R- 4, R-4a, R-4b, R-4c, R-5a, R-5(b), R-5(c), R-5(b)(i), R- 5(b)(ii) SERVED & NOTICE TO R-5(b)(iii) DISPENSED WITH VIDE ORDER DATED 15.01.2013)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 266 & 227 OF THE CONSTITUTION OF PRAYING TO:-

QUASH THE ORDER DATED 30.10.2002 IN NO.KLR.BK.106+138+94a+104+110, MUDALAGI : 12 :

PASSED BY THE LAND TRIBUNAL, GOKAK VIDE ANNEXURE-A.

DIRECT THE LAND TRIBUNAL, GOKAK TO GRANT OCCUPANCY RIGHTS IN FAVOUR OF THE PETITIONERS IN RESPECT OF THE PETITION LAND AS PRAYED FOR BY THEM.

THESE WRIT PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Petitioners who claim to be tenants in respect of

Sy.No.381 of Mudalagi Village, Gokak Taluk sought for grant of occupancy rights before Land Tribunal and are questioning the order passed by the Land Tribunal,

Gokak dated 30.10.2002, Annexure-A whereunder first respondent Land Tribunal rejected their claim. Land

Tribunal after an order of remand came to be passed by this Court in W.P.12982/81 by order dated 08.11.2000 rejected the applications filed by the petitioners and granted occupancy rights in favour of respondent No.3– deceased Sri.Bando Srinivas Desai and respondent

No.4- deceased Sri.Ramachandra Srinivas Desai as : 13 : tenants of above said agricultural land measuring 9 acres 5 guntas.

2. This court on the earlier occasion when respondent No.3 Sri.Bando Srinivas Desai had come up before this court calling in question order dated

09.03.81 passed by Land Tribunal whereunder it had granted occupancy rights in favour of petitioners 1, 2, 3 had remanded the matter back to the tribunal after considering rival contentions. Order passed by the Co- ordinate Bench of this court in W.P.12982/81 reads as under:

“5. After perusing the records, I find that the matter deserves to be remitted back to consider various points raised by the petitioner. The question is whether the sub- tenant is entitled to for the benefit of the Act either under Bombay Tenancy and Agricultural Act or under Karnataka Land Reforms Act has not been clearly considered by the Tribunal and that itself is sufficient to set aside the impugned order and remit back to the Tribunal. I find that the points raised : 14 :

by the petitioner has not been considered by the Tribunal.

6. In this view, granting one more opportunity to all the parties to produce all documents and establish their respective claim and leaving all the contentions open, the impugned order is set aside and the matter is remitted back to the Tribunal for fresh disposal according to law.

Accordingly, this writ petition is allowed so far as it relates to Sy.No.381”.

3. The above order of remand passed by this court undisputedly had reached finality since there was no challenge to the said order. As such Tribunal after issuing notice to the parties and after recording further evidence of parties, by order dated 30.10.2002 rejected the claim of the petitioners and accepted the plea of original claimants namely Sri.Bando Srinivas Desai and his brother Sri.Ramachandra Srinivas Desai and : 15 : granted occupancy rights in their favour which is under challenge in these writ petitions.

4. The contention of Sri.R.M.Kulkarni, learned counsel appearing for petitioners are as under:

(i) Tribunal has not understood the order of

remand in proper perspective.

(ii) Order of remand passed by this court would

indicate that Tribunal ought to have

considered whether sub-tenant is entitled

for the benefit of grant of occupancy rights

either under the Bombay Tenancy and

Agricultural Act or under the Karnataka

Land Reforms Act and this exercise was not

undertaken by the Tribunal.

(iii) Even otherwise on the available material

before tribunal which was voluminous in

nature it indicated that Sri.Srinivas

Muthalik Desai namely father of deceased

respondents 3 and 4 was a permanent : 16 : tenant and he had sub-let the said land to one Sri.Satyeppa Basappa Muniyal on

28.05.1945 for a period of five years and on lease coming to an end on 10.04.1950 the name of Sri.Srinivas Muthalik Desai was entered in the revenue records and the entire records indicated that the said

Sri.Srinivas Muthalik Desai was a permanent tenant of the land in question and as such the embargo placed under section 21 for creating sub-lease is not attracted to the facts and circumstances of the case and he would also draw the attention of the court to the evidence of deceased Bando Srinivas Desai dated

18.12.1980 whereunder he has admitted that Sri.Dundappa Ramappa Kankanawadi first petitioner was cultivating the land in question in the year 1965 and was paying the deceased Sri.Srinivas Muthalik Desai : 17 :

rent by way of share in the crops namely to

an extent of half share and he would

elaborate his submission in this regard by

contending that there is non consideration

of material evidence available on record and

as such it has resulted in an erroneous

order being passed by the Tribunal and as

such he prays for quashing of the order of

Land Tribunal. In the alternate he prays for

matter being remanded to Land Tribunal for

consideration afresh in the light of tribunal

having not examined the issue regarding

sub-lease and the right of a permanent

tenant to create sub-lease.

(iv) He would further draw the attention of the

court to Annexure-K-1 which is a record of

right relating to 1952-53 pertaining to Land

in question which indicates that first

petitioner was cultivating the land in

question by giving half share in the crops : 18 :

harvested to the permanent tenant–

Sri.Srinivas Muthalik Desai and contends

non consideration of this material evidence

by Land Tribunal has vitiated the order and

there has been non consideration of

material evidence and also non appreciation

of available evidence on record.

On these grounds he seeks for setting aside the order passed by the Tribunal.

5. Per contra, Sri.Anand Kumar, learned counsel appearing on behalf of respondents 3 and 4 would support the order passed by Land Tribunal and contends that Land Tribunal has rightly taken note of the fact that as on appointed date there was no entry in the revenue records reflecting the names of petitioners and as such it has rightly rejected the claim of the petitioners and there is no error committed by the

Tribunal and even otherwise he would submit that : 19 : petitioners when admittedly are claiming right to the property in question as a sub-tenant and there being an embargo under section 21 of the Karnataka Land

Reforms Act, 1961 to create sub-lease right of the petitioners even if any would get extinguished by virtue of statutory bar. Hence, he would submit that there is no merit in the writ petition and prays for dismissal of the same.

6. Sri.Ravi V.Hosamani, learned Additional

Government Advocate appearing on behalf of respondents 1 and 2 would support the order passed by the Land Tribunal and by making available the original records he would submit that Land Tribunal after the order of remand came to be passed by this court on

08.11.2000 in W.P.12982/81 though was required to consider the issue regarding sub-tenancy, for reasons best known has not examined said issue and if for any reason this court were to come to a conclusion that said issue requires to be re-agitated or reconsidered by : 20 : tribunal this court may remand the matter back to the

Tribunal for consideration of this issue afresh in the light of direction issued by this court and as such he prays for suitable orders being passed by taking into consideration the original records.

7. Having heard the learned advocates appearing for the parties and on perusal of the impugned order and records and after bestowing my careful and anxious consideration to the rival contentions raised by respective learned advocates it would emerge from the records that it is a second round of litigation and the parties to this lis have been litigating for past 60 years.

Though the order passed by Co-ordinate Bench of this court on 08.11.2000 in W.P.12982/81 directing the land tribunal to examine the question as to whether sub-tenant is entitled for the benefit of the Act i.e., either under Bombay Tenancy and Agricultural Act or under the Karnataka Land Reforms Act, 1961 same has not been examined at all by the Land Tribunal and this : 21 : would be a sufficient ground for this court to set aside the order of Land Tribunal and remand the matter back to the tribunal for consideration afresh. However, this court would deem it just and proper to examine the case on merits also in view of the fact that entire evidence is available on record and issue regarding sub-tenancy and right of permanent tenant to create sub-lease being a question of law since remanding the matter back to the tribunal would only be a ritual. As such, I desist from remanding the matter back to the tribunal and matter is being disposed of on merits.

8. Undisputedly five (5) Form No.7 applications came to be filed by the following persons on the following dates. Extent of land claimed by each of the applicants and details thereof are tabulated herein below for the purpose of convenience.

SL.NO. DATE OF NAME OF EXTENT RANK OF THE APPLICATION APPLICANT OF LAND PARTIES IN APPLIED THIS WRIT FOR PETITION GRANT OF OCCUPA : 22 :

NCY RIGHTS 1. 22.08.1974 KALLAPPA 2A 26G 2ND RAMAPPA PETITIONER KANKANAWADI 2. 28.08.1974 DUNDAPPA 9A 5G 1ST RAMAPPA PETITIONER KANKANAWADI 3. 31.12.1974 RAMAPPA 2A PETITIONER DUNDAPPA 12 1/2G NO.1(a) KANKANAWADI 4. 30.12.1974 BANDO 9A 5G RESPONDENT SRINIVAS NO.3 DESAI 5. 28.08.1974 HOLEPPA 4A 23G PETITIONER PARAPPA NO.3 TERDAL

9. Records of the Tribunal made available by the learned Government Advocate indicate that one

Sri.Allappa Payappa Desai was the owner of the land in question. Undisputedly Sri.Srinivas Muthalik Desai had taken the said land amongst other lands on lease from the said Sri.Allappa Payappa Desai about 200 years prior to the appointed date. It is also not in dispute that said Sri.Srinivas Muthalik Desai had sub- let the land in question to Sri.Satyeppa Basappa

Munyal for a period of five years commencing from

28.05.1945 and said lease came to an end on

10.04.1950. It is thereafter name of Sri.Srinivas : 23 :

Muthalik Desai came to be entered in the revenue records.

10. On the one hand the petitioners Sriyuths

Dundappa Ramappa Kankanawadi, Ramappa

Dundappa Kankanawadi, Kallappa Ramappa

Kankanawadi and Holeppa Parappa Terdal @ Shivapoor namely petitioners 1, 1(a), 2 and 3 claim to be tenants from the year 1950. Whereas the permanent tenant

Sri.Srinivas Muthalik Desai contended that none of these persons are tenants under him and they were working as coolies and as such they were not entitled for being registered as tenants of the lands in question.

The Record of Rights of five years from 1952-53 would clearly indicate that one Sri.Dundappa Ramappa

Kankanawadi namely first petitioner had obtained the property in question on sub-lease by oral agreement from Sri.Srinivas Muthalik Desai as evidenced from

Annexure-K-1. On perusal of the said annexure it would clearly indicate that it was agreed to between the : 24 : parties that tenant had to part with half share of the crops as rent to Sri. Srinivas Muthalik Desai. When this documentary evidence available on record is read in conjunction with evidence of Sri.Srinivas Muthalik

Desai’s son namely deceased Sri.Bando Srinivas Desai who had been examined before the Land Tribunal on

18.12.1980, it would not detain this court for too long to reject the contention of rival claimants namely claim of respondents 3 and 4 herein, since petitioners were tenants of the property in question and cultivating the lands in question. It is clearly admitted in his evidence namely in his examination-in-chief itself that in the year

1965 itself the name of deceased Sri.Dundappa

Ramappa Kankanawadi had been entered in the revenue records. Infact he goes to the extent of saying that in the said land which was being cultivated by

Sri.Dundappa Ramappa Kankanawadi he had to part with 50% of share in the crop and on account of non payment of said rent namely half share in the crop he was perforced to file a suit for perpetual injunction : 25 : against not only Sri.Dundappa Ramappa Kankanawadi but also against his brothers and was successful in obtaining an exparte order of temporary injunction on

09.02.1965 as could be seen from Annexure-G.

However, when the matter came to be contested by the defendants therein namely above said Sri.Dundappa

Ramappa Kankanawadi and others by producing material evidence before the competent Civil Court to contend that they have been in possession of the land in question, it was found by Civil Court after examining such claim that deceased Sri.Srinivas Muthalik Desai was not in possession and enjoyment of the said land but on the other hand as on the date of filing of the suit said Sri.Dundappa Ramappa Kankanawadi and his family members were in possession and enjoyment of the property in question. As such it dissolved the order of temporary injunction. These two facts would clearly indicate that Sri.Srinivas Muthalik Desai had created sub-lease in respect of the land in question in favour of

Sri.Dundappa Ramappa Kankanawadi and the said : 26 : person along with his family members were in possession and enjoyment of the same.

11. Now turning my attention as to whether said tenant Sri.Srinivas Muthalik Desai was a permanent tenant and whether he was entitled to create a sub- lease when examined in the background of statutory provisions namely Sections 5, 21 and 49 of the

Karnataka Land Reforms Act it would emerge that word

`tenant’ has been defined under section 2(34) of the Act to include a person who is a permanent tenant apart from other persons as defined thereunder. Section 5 prohibits creation of lease after the date of commencement of Amended Act namely Act 1 of 1974 or continuation of such lease on the commencement of

Amended Act. Section 21 prohibits sub-letting of any land held by a tenant and proviso to sub-section (1) would indicate that prohibition created under sub- section (1) would not affect the rights if any of a permanent tenant or in other words sub-tenancy : 27 : created by a permanent tenant would not extinguish such right of sub-tenant and section 49 recognizes the right of a sub-tenant to be registered as an occupant, where the tenant has lawfully sub-let the land. Division

Bench of this court in the case of Chikkanna since deceased by LRs. and others Vs State of Karnataka represented by Secretary to Government, Revenue

Department and others reported in ILR 2010

Karnataka 3901 has held that a person claiming occupancy right on the ground of being a sub-tenant can succeed only if he is able to demonstrate that sub- letting in his favour was prior to 02.10.1965 and if the sub-tenant were to acquire any right after coming into force Section 21 of the Act, sub-tenancy so created subsequent to 02.10.1965 would be hit by Section 21.

It has been held by the Division Bench as under:

“10. It is thus clear from the provision contained in Section 21 that, a bar is enacted for sub-letting the land held by any tenant except by a permanent tenant. The proviso and the succeeding sub-sections save : 28 : assignment by way of partition and by certain other categories of tenants like a soldier, seaman or in respect of certain transactions of loan or mortgage executed in favour of State Government or some Companies or Co- operative societies. Section 21 is in the statue book and has come into force with effect from 02.10.1965. Therefore, it is clear that, the prohibition for sub-letting the land is in existence since 02.10.1965. If that be so, unless it is established that the predecessor- in-title of the writ petitioners were permanent tenants of the lands in question, they could not have sub-let the lands after 02.10.1965. The facts as pleaded do not make the proviso to sub-section (1) of Section 21 applicable to the present case. However, no opinion need be expressed in this regard at this stage. It has to be therefore, noted that if sub-tenancy is created after 02.10.1965, it cannot be regarded as lawful in view of the prohibition enacted under Section 21.

11. Section 4 of the Act which deals with deemed tenants will also not take in its fold a sub-tenant who is inducted contrary to Section 21. : 29 :

12. In the case of TIMMAKKA KOM VENKANNA NAIK VS THE LAND TRIBUNAL AND OTHERS (Supra) on which reliance is placed by the appellants, the provisions contained under Section 21(1) of the Act came up for consideration. The question that arose was whether a tenant could bequeath his right of tenancy in favour of a third party under a Will. This Court having considered the effect of Section 45 and Section 21(1) of the Act has held in paragraph 12 that a tenant cannot assign his rights in the land to any other person in view of the bar enacted under Section 21 for subdivision or subletting of the land held by him. It is held that the bar cannot be overcome by a tenant even by creating a Will because what he cannot do during his lifetime cannot be held to be capable of being done immediately after his death. Likewise, in the case of SANGAPPA KALYANAPPA BANGI (DEAD) THROUGH LRS. VS LAND TRIBUNAL, JAMKHANDI AND OTHERS (Supra) explaining the effect of Section 21 of the Act, the Apex Court held that the assignment of any interest in the tenanted land by a tenant even by way of : 30 :

bequest under a Will cannot be held to be valid. In the case of BEERA AAYU AGERA VS LAND TRIBUNAL, ANKOLA AND OTHERS (Supra) learned Single Judge of this Court has held that under Section 45(1) of the Act a person claiming occupancy on the ground of being a sub-tenant can succeed only if he is able to show that the sub-letting in his favour was prior to 02.10.1965. It is further held that if the sub-tenancy rights were acquired after the coming into force of the provisions of the Act, the said sub-tenancy was hit by the provisions of Section 21 which prohibited sub- letting. In our view, the proposition of law regarding the prohibition of sub-lease as enacted under Section 21(1) with effect from 02.10.1965 is rightly laid down in this decision.”

12. In the light of law laid down by Division

Bench and in the background of statutory provisions noticed herein above when the facts on hand are examined undisputedly sub-tenancy was created by

Sri.Srinivas Muthalik Desai way back in the year 1952-

53 i.e., prior to 02.10.1965 as already indicated herein : 31 : above and as such the embargo placed under section 21 cannot be held to be attracted to the facts of the present case. In that view of the matter contention of Sri.Anand

Kumar, learned counsel appearing for respondents 3(a) to 3(g) and 4 that sub-tenancy could not have been created or such sub-tenants cannot be granted occupancy rights cannot be accepted and it stands rejected.

13. It is further noticed that respondents 3 and 4 namely deceased Sri.Bando Srinivas Desai and

Sri.Ramachandra Srinivas Desai as also their legal heirs have not been able to demonstrate before tribunal about their names finding a place in the Revenue records on the appointed date namely 01.03.1974. Records secured from the Tribunal as also Annexure-Q which relates to the entries made in respect of various lands in

Mudalagi Village would clearly indicate that in respect of Sy.No.381 an extent of 1acre 13guntas, 2acres

26guntas and 4acres 23guntas are standing in the : 32 : name of Sri.Dundappa Ramappa Kankanawadi (first petitioner), Sri.Kallappa Ramappa Kankanawadi (second petitioner) and Sri.Holeppa Parappa Terdal @ Shivapoor

(third petitioner). Said entry relates to the date of vesting of land in the State. It would also indicate that names of all the persons who are in actual cultivation and who are in possession and enjoyment of the property, together the extent of area in occupation of respective applicants is reflected. This is yet another factor which would sway in favour of petitioners to arrive at a conclusion that on the appointed date they were cultivating the lands in question as tenants and were entitled to be registered as occupants. Even

Record of Rights from the year 1965 onwards would clearly indicate the names of the above said persons was being reflected in the revenue records and this aspect has been completely lost sight of by the tribunal and there has been complete non application of mind in this regard by the tribunal and there is also non appreciation of available material evidence on record : 33 : and in a perfunctory manner tribunal has proceeded to pass the order impugned in the present writ petition and as such for these myriad reasons discussed herein above impugned order cannot be sustained.

Hence, I proceed to pass the following:

ORDER

1. Writ petition is hereby allowed.

2. Order passed by the Land Tribunal, Gokak dated

30.10.2002, Annexure-A is hereby quashed.

3. First Respondent Land Tribunal is hereby directed to grant occupancy rights in favour of petitioners in respect of the lands claimed by them for grant of occupancy rights and as claimed in Form No.7 filed by deceased applicants namely Sri.Dundappa Ramappa

Kankanawadi, Sri.Kallappa Ramappa Kankanawadi and

Sri.Holeppa Parappa Terdal @ Shivapoor forthwith. : 34 :

4. Respondent No.1 is hereby directed to issue Form

No.10 in favour of petitioners by granting occupancy rights in their favour as ordered herein above.

5. Costs made easy.

Sd/- JUDGE

SBN