Case: KANNA TIMMA KANAJI MADIWAL (D) THR. LR Vs. RAMACHANDRA TIMMAYA HEGDE (D) THR. LRS

2.1. One Kanna Kulage of the village aforesaid had three sons namely, Gutya, Timma and Ganappa. The appellant herein, Kanna (Kanna son of Timma having expired during this litigation, is now represented by his legal representatives but, looking to the subject-matter and the issues involved, the discussion herein is with reference to the original appellant Kanna.), is son of Timma and thus, nephew of Gutya. It is not in dispute that Ganappa had left the family and nothing in his regard is now involved in this litigation. Gutya had married Gauri but it is the case of the appellant that Gutya?s wife Smt. Gauri left him; remarried one Jatya; and begot two children from her second marriage with Jatya (This assertion that Smt. Gauri left Gutya and established matrimonial relations with Jatya is supported by the appellant with reference to the findings returned in a civil suit filed by Timma for declaration of his title and for injunction in respect of the land in question. The requisite details pertaining to the said civil suit shall occur hereafter a little later.). The land in question originally belonged to the respondents herein but admittedly, Gutya, paternal uncle of the appellant, was inducted as tenant therein.3. The relevant background aspects of the matter could now be noticed, in brief, as follows:3.1. It is the case of the appellant Kanna that due to the ill-health of his uncle Gutya, the land in question was being cultivated by his father Timma (brother of Gutya); and Timma was paying the rents to the respondents on behalf of Gutya, whose health kept on deteriorating.3.2. It is further the case of the appellant Kanna that on 13.02.1960, Gutya executed a Will and got it registered, bequeathing all his properties in favour of his brother Timma (father of the appellant). Gutya expired on 19.06.1963. After the demise of Gutya, the Tahsildar conducted an enquiry and, on 08.07.1963, effected mutation entry No. 1080 in the name of Timma in relation to the land in question that had been in cultivatory possession of Timma.3.3. Later on, the said Smt. Gauri filed her objections to the mutation entries made in favour of Timma but the said objections were overruled. However, the Assistant Commissioner, in appeal, remanded the matter for consideration afresh and, after such remand, the authority concerned, by its order dated 18.05.1965, ordered that the mutation entry of the land in question be made in the name of Smt. Gauri.3.4. Having thus succeeded in getting the land in question mutated in her favour, the said Smt. Gauri purportedly surrendered the tenancy rights in favour of the respondents herein on 16.06.1965.3.5. In the wake of the developments aforesaid, Timma filed a civil suit (Original Suit No. 117 of 1965 in the Court of Munsiff, Sirsi.) for declaration of possessory title and injunction against Smt. Gauri with reference to the Will of his brother Gutya, while also joining his other brother Ganappa and the present respondents as defendants. In her written statement, Smt. Gauri denied the execution of Will by Gutya and validity thereof; and also denied that Timma was in possession of the land in question. The respondents-landlords denied that Timma could have derived any right by virtue of the Will executed by Gutya.3.5.1. On 30.06.1969, the suit aforesaid was decreed by the Trial Court with the findings, inter alia, that Smt. Gauri left the company of Gutya and contacted marriage with Jatya; that after leaving the company of Gutya and upon her re-marriage, Smt. Gauri was no longer an heir of Gutya and, therefore, she was not entitled to inherit or surrender the tenancy rights of Gutya in the land in question. The Trial Court also held that Timma was in lawful possession of the land in question and the Will dated 13.02.1960 was validly executed by Gutya (The typed copy of this judgment dated 30.06.1969, placed on record as Annuxure P-1 carries several obvious typographical errors but, for the purpose of reference, the operative part thereof (at pp. 132-133 of the paper-book) is being extracted, verbatim, as under:- ?In view of my findings on the documentary and oral evidence in this case and in view of the correct legal position according to me I hold that the power of the deceased Gutya to will away his properties is unassailable. The plff. therefore, got absolute title and possession in respect of the Malki properties and possessary title in respect of lease hold items the moment Gutya died. I am also of the clear opinion that the first deft. did not retained her character as widow of Gutya and consequently acquired no titled or possession in respect of the suit properties. Upon a careful assessment of the evidence in this case the first deft. has impressed me as tool in the hands of owners of lease hold properties…. Therefore a decree is passed in favour of the plff. and against the defts. in the following terms. I. The Malki title of the plff. to items 1 to 3 of the plaint is hereby declared on the basis of Exh. P.1. II. The possessary title of the plff. is hereby declared in respect of items 4 to 7 of the plaint on the same basis. III. An perpetual injunction is issued against all the defendants, their servants, agents etc., from interfering with the peaceful possession and enjoyment of all the suit properties. IV. The suit of the plff. is decreed against all the defendants for costs. This decree for costs is a joint and several decree. V. The defendants will bear their own costs.?(sic)).3.5.2. Assailing the decree aforesaid, appeals were preferred in the Court of District Judge, Karwar by the respondents-landlords and Smt. Gauri (Being RA No. 59 of 1973 and RA No. 60 of 1973.). The First Appellate Court reversed the decree of the Trial Court and remanded the matter for reconsideration of the question as to who was the tenant after the death of Gutya. This order of remand was challenged by Timma before the High Court of Karnataka (In Misc. Appeal No. 5 of 1975 ). The High Court, by its order dated 08.03.1977, disapproved the order of remand and restored the matter to the file of First Appellate Court for disposal on merits, after observing that the question involved was not of ‘tenancy? but the one relating to the ‘succession of Gutya?s tenancy?. 3.5.3. After remand, the appeal filed by the present respondents against the decree of the Trial Court was transferred to the Court of Civil Judge, Sirsi (renumbered as RA No. 43 of 1978 renumbered as RA No. 43 of 19788). Ultimately, the First Appellate Court dismissed the said appeal by way of the judgment and decree dated 18.12.1990 while holding that the Will executed by Gutya in favour of Timma was proved and the same was validity registered. The First Appellate Court also confirmed the findings of the Trial Court that Smt. Gauri had re-married and ceased to be the heir of Gutya. While referring to the provisions contained in sub-section (1) of Section 27 of the Bombay Tenancy and Agricultural Lands Act, 1948, [‘the Act of 1948?], the First Appellate Court also observed that the said provision prohibited alienation of leasehold land by a tenant but testamentary succession was not prohibited. (A passage from the said decision of the First Appellate Court (at pp. 198-199 of paper-book) could also be usefully extracted as under:-?21…..There is therefore, no substance in the contention of the learned counsel for petitioner that the claim of respondent no. 5 based on testamentary succession could not have been entertained by Tribunal as alleged acquisition of lease was in violation of Sec. 21 of the Act. In the instant case, there is evidence to show that deft. 1 Gouri remarried. There is no dispute regarding the tenancy as it is admitted fact late Gutya was a tenant of lease hold properties. It has come in the evidence that deft. 1 Gouri had left her husband?s house and started living in some other village and led an unchaste life and subsequently she married one Jatya through whom she begotten children, for which there is evidence. The very object of prohibition u/s 27 is that after the death of tenant, the heirs of deceased tenant shall be entitled to partition and sub division the land leased subject to the conditions laid down. In the Will it is specifically stated that Gutya had no issues. It is also not the case of Gouri that she has filed any application claiming tenancy right before the competent authority after the alleged execution of the Will…..?)3.5.4. The decree so passed by the First Appellate Court was challenged by the present respondents by way of a second appeal RSA No. 22 of 1991 that was considered and dismissed by the High Court on 08.07.1998. The present respondents attempted to challenge the judgment of the High Court in this Court but the petition for Special Leave to Appeal SLP (C) No. 4770 of 2000 was also dismissed on 26.02.2001.3.5.5. Hence, the net result of the civil suit aforesaid had been that the findings came to be recorded conclusively that Smt. Gauri was not the heir of Gutya; that Timma was the heir of Gutya; that Gutya had executed the Will in favour of Timma bequeathing his rights in the land in question; and that Timma was in possession of the land in question. These findings attained finality with dismissal of appeals and the petition for Special Leave to Appeal in this Court.3.6. The other line of proceedings commenced on 08.08.1974 with filing of an application in Form No. 7 under Section 48-A of the Karnataka Land Reforms Act, 1961 [‘the Act of 1961?] by Timma for grant of occupancy rights in respect of the land in question before the Land Tribunal, Siddapur (Case No. TNC-DSR-988-5563-4885-7524). This application was moved by Timma after the decree of the Trial Court in the above-referred civil suit but during the period when the appeal against such decree was pending. During the pendency of application before the Land Tribunal and also the appeal proceedings relating to the aforesaid civil suit, Timma expired and hence, his wife and children were brought on record as his legal representatives.3.6.1. On 22.09.1981, the Land Tribunal rejected the claim for grant of occupancy rights in respect of the land in question while observing that the appellant (son of Timma) had made a statement of admission that he was not the tenant of the land in question.3.6.2. The aforesaid order of the Land Tribunal was challenged by the appellant Kanna, son of Timma, before the High Court by filing a writ petition and, inter alia, disputing the purport of the statement alleged to have been made by him before the Land Tribunal. During the pendency of the said writpetition, the Land Reforms Appellate Authority came to be established and hence, the High Court transferred the matter to the said Appellate Authority. The matter so transferred by the High Court was registered before the Appellate Authority as an appeal against the order of Land Tribunal Appeal No. DAAA:AP:203/1986.3.6.3. By its order dated 18.07.1988, the Appellate Authority dismissed the said appeal of the appellant for non-prosecution. The appellant sought restoration of the appeal and recall of the order of default dismissal by moving an application under Rule 9 of the Karnataka Land Reforms Rules. The application so moved by the appellant was dismissed by the Appellate Authority on 26.12.1988, for want of sufficient reasons for absence of advocate on the date of hearing as also for want of an application for condonation of delay of one day in filing the application for recall.3.6.4. Being aggrieved by such dismissal of the appeal and the application for restoration, the appellant preferred a revision petition L.R.R.P. No. 1 of 1996 before the High Court of Karnataka. The High Court proceeded to dismiss the petition so filed by the appellant by its impugned order dated 08.08.2001, while rejecting the claim of appellant on merits and while observing, inter alia, that: (a) Gutya was the original tenant of the land in question before his demise in the year 1963; (b) in the application in Form No. 7, Timma failed to plead about the separation of Smt. Gauri from Gutya prior to his demise and, therefore, the alleged disinheritance of Smt. Gauri could not be countenanced, meaning thereby that she remained the legal heir of Gutya; (c) the assignment of interest of tenancy by way of bequeath was barred under Section 21 of the Act of 1961 and, therefore, Timma could not succeed to Gutya?s land by virtue of the Will executed in his favour; (d) Gutya and Timma had their respective parcels of land and each of them was cultivating his own parcel; (e) if tenancy was transferred in favour of Timma, it would amount to creation of fresh tenancy, which would be in contravention of the provisions of the Act of 1961; and (f) the appellant had made a statement before the Land Tribunal that he was not a tenant in respect of the land in question. The relevant portion of the order of the High Court reads asThe appellant attempted to challenge the aforesaid order dated 08.08.2001 in this Court by way of a petition for Special Leave to Appeal SLP (C) No. 3339 of 2002 but, on 11.03.2002, the same was dismissed as withdrawn with liberty to the appellant to file a review petition before the High Court. The appellant, thereafter, filed a review petition Review Petition No. 484 of 2002 before the High Court with an application for condonation of delay. Even this review petition went through its own meandering course inasmuch as the application for condonation of delay was dismissed by the High Court on 01.08.2003 for want of satisfactory reasons for not approaching the Court within reasonable time. Against this order dated 01.08.2003, the appellant again approached this Court by way of another petition for Special Leave to Appeal SLP (C) No. 23609-23610 of 2003 that was allowed on 09.07.2004; this Court condoned the delay and remitted the matter to High Court for disposal on merits.3.6.6. Ultimately, the said review petition and an application therein for production of additional documents were considered on merits and the High Court proceeded to dismiss the same by its order dated 06.12.2004 while essentially reiterating its findings, as occurring in the order dated 08.08.2001, and while observing that there was nothing of any error apparent on the face of record. The High Court observed, inter alia, asThe aforesaid orders dated 08.08.2001 and dated 06.12.2004, as passed by the High Court of Karnataka in the revision petition and the review petition filed by the appellant are the subject of challenge in these appeals. However, the narration about the litigations between the parties would remain incomplete if another proceeding in the form of a civil suit filed by the present respondent No. 1 is not referred (O.S. No. 209 of 2002 in the Court of Civil Judge (Jr.Dn.), Siddapur). After passing of the aforesaid order dated 08.08.2001 by the High Court, a civil suit was filed by the respondent No. 1, seeking perpetual injunction against the appellant and his brothers. An application seeking temporary injunction was also filed therein, being IA No. 1. The Trial Court dismissed the said application for temporary injunction by its order dated 17.04.2003 while holding that the defendants (appellant and others) were in possession of the suit property.4. In summation of the chronicle aforesaid, it could be noticed that in essence, there had been two major lines of litigation concerning the parties: One being the civil suit filed by Timma wherein the questions of validity of Will of Gutya and possession of Timma over the land in question were gone into. The suit was decreed with all material findings in favour of Timma and the decree attained finality. The other line of litigation relates to the application in Form No. 7 under Section 48-A of the Act of 1961 filed by Timma for grant of occupancy rights in respect of the land in question. This application, prosecuted by the appellant Kanna after demise of Timma, was rejected; the appeal was dismissed; and the revision petition and the review petition before the High Court were also dismissed by the impugned orders dated 08.08.2001 andpetitioner herein cannot succeed to the tenancy right of the deceased Gutya by virtue of the Will alleged to have been executed by the deceased Gutya in favour of his father Thimma, in the presence of the wife of the deceased Gutya by name Gowri who is the legal heir of the deceased to succeed to the tenancy rights of her deceased husband. Further it is also the case of the petitioner herein that when the deceased Gutya fell ill and the father of the petitioner Thimma began to cultivate the lands in respect of which the deceased Gutya was a tenant, the father of the petitioner had started paying the rent in respect of the said lands to the landlord and which were duly accepted by him. Thus according to the petitioner there was almost a fresh lease created in favour of the father of the petitioner Thimma. But it has to be stated that any tenancy created in contravention of Section -5 of the Karnataka Land Reforms Act would be void and therefore any possession pursuant to such fresh lease would also be unlawful and such person is therefore not entitled to the benefit of section-4 of the KLR Act. Even on the ground also, the father of the petitioner was not entitled to seek the registration of occupancy rights in respect of the lands, of which the deceased Gutya was a tenant. Therefore looking from any angle, neither the petitioner nor his father Thimma could be entitled to seek registration of occupancy rights in respect of the lands, of which the deceased Gutya was a tenant. That apart, the order of the Land Tribunal would clearly indicate that the petitioner herein who gave his statement before the Land Tribunal did not claim tenancy right in respect of the lands, of which the deceased Gutya was a tenant. No doubt it was sought to be contended on behalf of the petitioner that there was no such statement made before the Land Tribunal by the petitioner. But the order of the Land Tribunal would clearly indicate that the petitioner did make such a statement before the Land Tribunal. If the petitioner wanted to establish the fact that the said observation made by the Land Tribunal in its impugned order is factually incorrect, he could have adduced additional evidence before the Land Reforms Appellate Authority. But he did not do so and on the other he allowed the appeal to be dismissed for default. Therefore having given my anxious consideration to the entire matter in issue, I find no merit in this revision petition filed by the petitioner and it is liable to be dismissed.In the instant case, I find that there is no such error apparent on the face of the record and the present review Petition filed by the Petitioner is only an attempt to reargue the matter, which is not permissible in review jurisdiction…....In the case at hand, the deceased testator Gutya could not have executed the Will in favour of a person who could not be declared to be a tenant having occupancy right and that further the person concerned was not a tenant within the meaning of the Act on the appointed day and hence he was clearly not eligible for occupancy rights. It is needless to point out that the mere possession of the lands will not be sufficient to confer the status of occupancy of tenancy as the sine-qua-non for obtaining the status of occupancy of tenancy rights is that the person concerned must be a tenant on the appointed day. It has to be stated that the tenancy continues notwithstanding the death of the tenant in occupation of certain lands and such (?) is held by the heirs of such tenant on the same terms and conditions on which he had held prior to his death and the heirs who can take the property are those who are referable to in Section 21 of the Karnataka Land Reforms Act and that in the instant case, the person concerned being not an heir of the deceased tenant and there being a spouse (wife) of the deceased tenant living at the relevant time, could not have obtained the status of the occupancy tenant [sic]. Obviously therefore, the person concerned did not seem to have claimed tenancy rights in respect of the lands in occupation of the deceased tenant Gutya. Under the circumstances, therefore, I find no error apparent on the face of the order which is now sought to be reviewed, so as to call for correction by exercise of the review jurisdiction.…...Considering the limited scope for review under Order 47 Rule 1 of CPC, the additional evidence sought to be adduced by the Petitioner by means of his I.A. No. 1 cannot be permitted….?

Reasoning:
It may, however, be noticed that the prohibition contained in Section 21(1) and the restriction contained in Section 61(1) of the Act of 1961 operate in different fields inasmuch as Section 21(1) occurs in Chapter II of the Act of 1961, making general provisions regarding the tenancy and rights and obligations of a tenant of an agricultural land. Section 61, on the other hand, occurs in Chapter III, dealing with conformant of ownership on tenants by way of their registration as occupants. In other words, the restriction envisaged by Section 61 of the Act of 1961 comes into operation after a tenant has acquired occupancy rights whereas the prohibition contained in Section 21 operates at the stage before acquisition of occupancy rights and in relation to the tenancy simpliciter.It is at once clear from the provisions and the decisions above referred that in the scheme of the Act of 1948 as also the Act of 1961, when a person had been inducted as tenant, heritable right comes into existence with certain embargo over transferability of such tenancy. In other words, such tenancy continues even after the demise of tenant. If the deceased tenant was a member of joint family, then the surviving members of the joint family; and if he was not a member of joint family, his heirs would be entitled to claim partition subject to the conditions specified. However, the tenanted land cannot be sub-let nor any interest therein could be assigned. In Sangappa (supra), this Court has explained the object behind such embargo that strangers to the family of tenant were not to be allowed to come upon the tenanted land. Even disposition under a Will is held covered within the wide sweep of the expression ?assignment? for the purpose of the Act of 1961 but with the significant, and rather pertinent, exception that such embargo does not prevent a bequeath in favour of the heirs noticed in the said provisions. This Court said in no uncertain terms that: ‘the deceased tenant can assign his rights only to the heirs noticed in the provision and such heirs could only be the spouse or any descendants or one who is related to the deceased tenant by legitimate kinship?. This enunciation is neither curtailed nor whittled down in Jayamma?s case (supra).13. As noticed, the decision in Jayamma (supra) had been on the interpretation of Section 61 of the Act of 1961, where stricter embargo is envisaged, being related to a different provision that operates in a different field and comes into effect after acquiring of occupancy rights. Moreover, in Jayamma?s case, the legatee, a neighbour, was found to be having no legitimate kinship with the testator; and the Will in question was executed within the period of 15 years from the date of grant, which was prohibited by law. Hence, the decision in Jayamma?s case has no adverse effect on the claim in the present case for the obvious reasons that: (a) the present case relates to the stage before acquisition of occupancy rights; and (b) the legatee of the Will in question before us, Timma, had been none other than the brother of the deceased tenant, Gutya; and the said legatee, being related to the deceased tenant by legitimate kinship, had already been declared to be the successor of the tenant in the civil suit in presence of all the relevant parties, including the respondents, with categorical finding that the wife of tenant had left and ceased to be his heir after having contacted other marriage.14. On the admitted fact situation of the present case and on the concluded findings, the net position obtainable is as follows: The deceased Gutya was the tenant in the land in question. No doubt, Smt. Gauri was the wife of Gutya and, had she retained this status, she would have been his Class I heir, in terms of the Schedule to the Hindu Succession Act, 1956. However, the concluded findings in the civil suit filed by Timma (with the present respondent being parties thereto) are to the effect that Smt. Gauri left Gutya, contacted second marriage with Jatya, and begot two children from such marriage. In sequel to these findings and in view of the other evidence on record, it was held in the said civil suit conclusively that Smt. Gauri was not the heir of Gutya. It was also held conclusively that Timma was the heir of Gutya; that Gutya had executed the Will in favour of Timma bequeathing his rights in the land in question; and that Timma was in possession of the land in question. These findings have attained finality with dismissal of appeals and ultimately, with dismissal of the petition for Special Leave to Appeal in this Court. Moreover, these findings bind the present respondent fair and square, for they were parties to the said suit and in fact, only they had pursued the matter in appeals, though unsuccessfully. In the face of these concluded findings, we find absolutely no justification that the High Court proceeded in the impugned orders on the premise that Smt. Gauri was the heir of Gutya for being his wife. The effect of the abovementioned findings of the civil Court has been brushed aside by the High Court with a few observations that the fact of existence of the wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights. As noticed, on the date of filing of such application, the suit filed by Timma had already been decreed by the Trial Court with the findings aforesaid, although the matter was pending in appeal. In any case, the concluded and binding findings of the civil Courts did not lose their worth if the fact about erstwhile wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights; and the High Court could not have treated such findings as nugatory or redundant.14.1. So far the legal effect of the said Will by the tenant Gutya in favour of his brother Timma is concerned, as noticed, Timma was definitely related to Gutya by legitimate kinship, being his brother. Hence, the Will is not hit by the embargo, whether that contained in Section 27(1) of the Act of 1948 or in Section 21 of the Act of 1961. A fortiori, the application made by Timma in Form 7 under Section 48-A of the Act of 1961 for grant of occupancy rights in respect of the land in question could not have been denied.15. An observation made by the High Court, about the appellant having made a statement before the Land Tribunal as if to give up his claim as tenant of the land in question, has only been noted to be disapproved. It is noticed that the Land Tribunal proceeded to reject the claim in relation to the land in question by way of its order dated 22.09.1981 in a wholly cursory manner with reference to the alleged statement made by the appellant but without appreciating that the statement was required to be understood contextually where certain parcels of land in which Timma was the tenant in his own right were also being described. In that context, it was clarified that Timma was, as such, not the tenant in relation to the land in question; meaning thereby that Timma was not the original tenant. The statement was not incorrect because Gutya was the original tenant qua the land in question. Such a bonafide statement could not have operated against the claim of occupancy rights in respect of the land in question, when the claim was essentially based on the Will in favour of Timma and his cultivatory possession.16. As noticed, the appeal against the aforesaid order of the Land Tribunal was not decided on merits. Rather, the approach of the Appellate Authority had been a bit too exacting where the appeal was dismissed in default and then, the application for restoration was dismissed with a hyper-technical view of the matter and for delay of one day in filing. In revision petition against the order so passed by the Appellate Authority, the High Court, even without having the benefit of a considered decision of the Appellate Authority, chose to deal with the matter on merits and rejected the claim of the appellant on either irrelevant considerations or while overlooking the effect of the findings in the civil suit between the parties as also the ratio in Sangappa (supra). In our view, while adopting such a course, of deciding the matter on merits without having the finding of the Appellate Authority, it was moreover required of the High Court to examine the record in proper perspective; and, for that matter, the decisions rendered in the civil suit filed by Timma, which carried concluded findings on the basic issues involved in the litigation, ought to have been examined in requisite details.17. The upshot of the discussion foregoing is that the impugned orders cannot be sustained and it is beyond the pale of doubt that the application filed by the appellant by Timma for grant of occupancy rights in respect of the land in question deserves to be allowed.Having given anxious consideration to the rival submissions and having examined the record with reference to the law applicable, we are clearly of the view that the answer to the question aforesaid could only be in the negative and the impugned orders cannot be sustained.