ARUN KUMARversusSTATE OF KARNATAKA AND ANR.

                         [2008] 5 S.C.R. 1192


A                          ARUN KUMAR
                                  v.
               STATE OF KARNATAKA AND ANR.
              (Civil Appeal Nos.1096-1097 of 2002)
                           APRIL 7, 2008
B
       [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

        Tenancy laws.'
         Bombay Ten~ocf and Agricultural lands Act, 1948 -
C s.5(3)(b) - Surrender of lands relating to two survey numbers
  by tenant-respondent - Order passed by Tehsildar showed
  only land relating to one survey number - Respondent filed
  application for grant of occupancy rights - Dismissed - High
  Court placed reliance on order of Tehsildar that surrender was
D only in respect of one survey number - On appeal, Held:
  Documents show that lands in respect of both survey numbers
  were surrendered by respondent - Deposition of respondent
  in a statement made before Tehsildar that he voluntarily left
  cultivation and surrender deed bore his signature - In view of
E documentary evidence, High Court ought not to have placed
  reliance on order where there appeared omission of
  surrendered survey number.
       Appellant was the owner of suit property measuring
  2 acres 30 guntas in Survey no.179 and an extent of 2
F acres and 15 guntas in Survey no.106. The said land was
  under the tenancy of respondent no.2 who had
  surrendered both the suit properties to the appellant's
  father. To substantiate such stand the appellant produced
  the deed of surrender, statement of the father of the
G appellant dated 22.8.1955 before the Tehsifdar; statement
  of the respondent dated 6.9.1955 before the Tehsildar and
  possession certificate issued in the presence of Village
  Accountant and Panchas on 8.12.1955, which were in
  respect of both the properties.
H                            1192
                                                                   ..
 ARUN KUMAR v. STATE OF KARNATAKAAND ANR.             1193


      Apart from the above documents, mutation entries A
in the records in respect of both the properties were in
favour of the appellants since 1955. However, due to
inadvertence when the order was passed by Tehsildar on
6.9.1955, Survey no.106 was not recorded. Taking
advantage of the said order, respondent no.2 filed an s
application for grant of occupancy rights after amendment
to the Act w.e.f. 1.3.1974. The Appellate Authority, recorded
the findings that there has been valid surrender in
accordance with the provisions of the Bombay Tenancy
Act in the year 1955 itself. It was, however, got recorded C
in the name of the appellant in the revenue records since
1955 without any objection from respondent no.2 and as
on 1.3.1974 the respondent no.2 was not cultivating the
land at the tenancy.
     A revision was filed before the High Court by            o
respondent no.2, wherein it was held that the surrender
was only in respect of Survey no.179, and, therefore,
respondent no.2 was entitled to grant of occupancy rights
in respect of Survey no.. 106.
     In appeal to this Court, appellant contended that the E
High Court did not notice the requirement of s.5(3)(b) of
the Bombay Tenancy Act, according to which the
requirement for valid surrender namely; firstly, surrender
deed has to be executed and secondly it has to be verified
by the Tehsildar/Mamlatdar.                                F
    Allowing the appeal, the Court
     HELD: 1.1. In the surrender certificate, it was clearly
noted that both the lands were handed over to the father
of the appellant. All the documents relied upon by the G
appellant clearly show that the surrender was in respect
of lands relating to both survey numbers. [Para 9]
[1197-D-E]
     1.2. The deposition of respondent no.2 dated 6.9.1955
clearly showed that he himself admitted that he voluntarily   H
    1194       SUPREME COURT REPORTS                [2008] 5 S.C.R.


A left cultivation and the surrendered deed bore his
  signature. In view of the documentary evidence, the High
  Court ought not to have placed reliance on the order dated
  6.9.1955 where there appeared to be genuine omission
  of the surrendered survey number. A surrender by
B tenant could be only valid and binding on him if it was
  in writing and was verified by Mamlatdar whose duty is
  to ascertain whether surrender was voluntary and was
  not under any pressure or undue influence of the landlord.
  [Paras 10, 11] [1198-G; 1199-A-B]
C       Val/abbhai Nathabhai v. Bai Jivi AIR (1969) SC 1190;
    Ramchandra Keshav Adke (Dead) by Lrs. v. Govind Joti
    Chavare and Ors. (1975) 1 SCC 559 - referred to.
       1.3. The documentary evidence clearly established
  the fact that the surrender was voluntary and without
0
  pressure or undue influence. Tehsildar had endorsed his
  findings on the document itself. It is necessary to refer to
  ss.7 and 41 of the Act which provide for restoration of
  possession under certain circumstances. The procedure
  for recovery of such possession is also prescribed.
E Undisputedly, no such application was filed by the
  respondent no.2. Additionally, no action was taken by
  respondent no.2 for grant of tenancy rights from 1955 till
  1974. [Para 12] [1199-C-D]
F       CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
    1096-1097 of 2002.
         From the Judgment and Order dated 9.3.1999 and
    6.8.1999 of the High Court of Karnataka at Bangalore in L.R.R.P.
    No. 4052/1988 and C.P. No. 547/1999 respectively.
G
           Kiran Suri for the Appellant.
           Sanjay R. Hegde (NP) for the Respondents.
           The Judgment of the Court was delivered by
H          DR. ARIJIT PASAYAT, J. 1 Challenge in these appeals
   ARUN KUMAR v. STATE OF KARNATAKAAND ANR.                  1195
             [DR. ARIJIT PASAYAT, j_)

  is to the order. passed by a learned Single Judge of the A
  Karnataka High Court allowing the civil revision filed under
  Section 121(A) of the Karnataka Land Reforms Act, 1961 (in
  short 'the Act'). Challenge in the petition was to the order passed
  by the Land Reforms Appellate Authority, Dharwad (in short
  'Appellate Authority') Respondent no. 3 had filed the petition. B
  The Appellate Authority set aside the grant of occupancy rights
· as granted by the Land Tribunal, Dharwad (in short 'the
  Tribunal').
       2. Background facts as projected by the appellant are as
 follows:                                                            C
        Appellant is the owner of suit property measuring 2 acres
 30 guntas in Survey no. 179 and an extent of 2 acres and 15
 guntas in Survey no. 106. The said land was under the tenancy
  of respondent no. 2 who had surrendered both the suit properties
                                                                     0
'to the appellant's father. To substantiate such stand the appellant
  produced the following documents:
       (a)   Deed of surrender dated 10.3.1955.
     · (b)   The statement of the father of the appellant dated      E
             22.8.1955 before the Tehs.ildar.
       (c)   The statement of the respondent dated 6.9.1955
             before the Tehsildar.
       (d)   The possession certificate in the presence of village
             Accountant and Panchas on 8.12.1955.                    F
       (e). The mutation entrydated 8.12.1955 by the Tehsildar.
      3. At the relevant point of time the Bombay Tenancy and
 Agricultural Lands Act, 1948 (in short the 'Bombay Tenancy Act')
 was in operation in the State of Karnataka._Section 5(3)(b) of G
 the said Act reads as follows;          - ·
       "(3) Notwithstanding anything contained in sub-section
       (1)-
       (a)   xxxxxx                                                  H
    1196          SUPREME COURT REPORTS               [2008] 5 S.C.R.

                                                                        .._
A          (b) a tenant may terminate the tenancy at any time by
             4 surrendering his interest as a tenant in favour of the
             · landlord:

           Provided that such surrender shall be in writing and shall
           be verified before the Mamlatdar in the prescribed
B          manner."

        4. Apart from the above documents, mutation entries in
  the records in respect of both the properties are in favour of the
  appellants since 1955. However, due to inadvertence when the
c order was passed on 6.9.1955, Survey no. 106 was not
  recorded. However, all the documents including the mutation
  records, deed of surrender which was verified by the Tehsildar,
  statement of parties, possession certificate, panchnama are in
  respect of both the properties. Taking advantage of the said
  order, respondent no. 2 filed an application for grant of
D
  occupancy rights after amendment to the Act w.e.f. 1.3.1974.
  The Appellate Authority after considering the facts on record,
  recorded the findings that there has been valid surrender ir
  accordance with the provisions of the Bombay Tenancy Act i1
  the year 1955 itself. It was, however, got recorded in the narre
E of the appellant in the revenue records since 1955 without cny
  objection from respondent no.2 and as on 1.3.19741he
  respondent no.2 was not cultivating the land at the tenanry. In
  fact, in the revenue records name of appellant is. recor~d as
  cultivator of his own lands.
F
       5. A revision was filed before the High Court by re51ondent
  no.2. The High Court came to hold that the surrendFf was in
  respect of Survey no.179. Reference was made onlytfthe order
  of the Tehsildar where reference was made only.o Survey
  no.179. It was, therefore, held that respondent no.2 J entitled to
G
  grant occupancy rights in respect of 2 acres and 5 guntas in
  respect of Survey no.106 re-numbered as 208.
          6. Stand of the appellant in the present apeal is that the          f
    High Court should not have exercised revisirlal jurisdiction
H   interfering with the findings recorded by the Apellate Authority.


                  < ..;!t"l4
                  If   .i>,..<

                 ·~
      ARUN KUMAR v. STATE OF KARNATAKA AND ANR.                    1197
                [DR. ARIJIT PASAYAT, J ]

     The High Court, it is submitted, did not notice the requirement A
     of Section 5(3)(b) of the Bombay Tenancy Act, according to
     which the requirement for valid surrender namely; firstly, ·
     surrender deed has to be executed and secondly it has to be
     verified by the Tehsildar/Mamalatdar (for Karnataka). The deed
     of surrender was verified by the Tehsildar whereby the Tehsildar B
     has verified as under:
~
          "The right of a tenant and the effects of surrender were
          fully explained to the tenant and I am satisfied the surrender
          is voluntary."
                                                                           c
           7. According to the appellant, the inevitable conclusion is
     that there was valid surrender in 1955 itself.

          8. There is no appearance on behalf of the respondent
     no.2 in spite of service of notice.
                                                                           D
           9. In the surrender certificate it is clearly noted that both
~
     the lands were handed over to the father of the appellant. All the
     documents relied upon by the appellant clearly show that the
     surrender was in respect of lands relating to both survey
     numbers. The statement of the respondent was recorded by
     the Land Tribunal and is very significant. In the order dated         E
     24.12.1981 it has been noted as follows:

          "Applicant and Respondents are present. Applicant has
          stated that in the said land he is cultivating the land as
          tenant to the area measuring about 2 acres 30 guntas.            F
          Respondent has denied and stated that he is not cultivating
-;        as a tenant, he was cultivating the land prior to 1955, he
          has surrendered the lands in 1955 since then we are only
          cultivating the land."
          In the records from 1956-57 to 1978-79 in the cultivators        G
          column, it is shown as "OWN" (Swantha Saguvali). The
          name of the applicant is nowhere mentioned as a tenant.
          Hence, to decide who is cultivating the said land measuring
          2 acres 30 guntas whether the applicant is cultivating as
          a tenant or whether the tenancy rights can be granted to         H
    1198       SUPREME COURT REPORTS                     (2008) 5 S.C.R.


A          the applicant, the tribunal decided to do the spot inspection.
           And on 19-12-1981 inspected the spot.

           At the time of spot inspection inquired the neighbouing
           owners of the land and villagers, 1 Sri Basappa Fakirappa
           Pattada i, Sri Ahamappa, Sri Jeevapa Sangolli, Sri
B          Hanumanthappa Padmappa Ahethi, Sri Bheemappa
           Huger etc., have stated that 2 acres 30 guntas in survey             /.

           No. 208, Garag is cultivated by the applicant since from


c
           his father's time.

           Hence in the records the name of the applicant is not
           appearing in the year 1973-74 for block no. 208 measuring
                                                                                     -
           2 acres 30 guntas as tenant. At the time of spot inspection,
           it was seen that applicant is cultivating the said land.
           Hence, the Land Tribunal decided that applicant was a
           tenant in the year 1973-74 for 2 acres 30 guntas and as
D
           on 1-3-1974 the said land 2 acres 30 guntas was a tenancy
           land, has granted the tenancy rights for 2 acres 30 guntas.      1
           Allowed the applications for 2 acres 30 guntas, for rest of
           the land application is rejected.

E          For the land in Block No.208 situated at Garag village,
           Dharwad measuring 2 acres 30 guntas, the name of the
           applicant i.e., Sri Havalappa Gadigeppa Kittur is granted
           tenancy rights as per Sec. 48-A(5) of the Land Reforms
           Act.
F          Order pronounced in the open court on 24-12-1981."
        10. The deposition of respondent no. 2 dated 6.9.1955
  clearly show that he himself admitted he voluntarily left cultivation
  and the surrendered deed bears his signature. In view of the
  documentary evidence the High Court should not have placed
G
  reliance on the order dated 6.9.1955 where there appears to
                                                                                     l-
  be genuine omission of the surrendered survey number.
        11. The effect of surrender of tenancy was considered by            ~


  this Court in (AIR 1969 SC 1190) and Ramchandra keshav
H Adke   (Dead) by Lrs. v. Govind Joti Chavare and Ors. ((1975)
      ARUN KUMAR v. STATE OF KARNATAKAAND ANR.                     1199
                [DR. ARIJIT PASAYAT, J.]

     1 sec 559). In the latter case it was, inter alia, held that the      A
     tenancy of such surrender comes to an end and the rights arising
     out of that relationship terminate. A surrender by tenant can be
     only valid and binding on him if it was in writing and was verified
     by Mamaltdarwhose duty is to ascertain whether surrender was
     voluntarily and was not under any pressure or undue influence         B
     of the landlord.
            12. In the instant case the documentary evidence clearly
     established the fact that the surrender was voluntary and without
     pressure or undue influence. As noted above, Tehsildar has
     endorsed his findings on the document itself. It is necessary to C
     refer to Sections 7 and 41 of the Act which provide for restoration
     of possession under certain circumstances. The procedure for
     recovery of such possession is also prescribed. Undisputedly,
     no such application was, however, filed by the respondent no.2.
     Additionally, no action was taken by respondent no.2 for grant D
     of tenancy rights from 1955 till 1974.
           13. Above being the position, the High Court's order is
     clearly indefensible and is set aside and the order passed by
     the Appellate Authority is restored.
                                                                           E
            14. The appeals are allowed without any order as to costs.
     D.G.                                             Appeal allowed



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