Allottee Becomes Landlord On Receiving Share In Partition, Continuation Of Tenancy Need Not Be In Writing: Karnataka HC Grants Relief To Ex-Serviceman

The Petitioners, ancestor of one Umar Beary, were tenant of the subject land that belonged to the ownership of the father of the ex-serviceman, allegedly since 1940 or so. The respondent, having retired from the defence service in 1993, had applied under Section 15(4) of the Karnataka Land Reforms Act, 1961 seeking resumption of the land in question contending that during his defence service, he had continued the tenancy created by his father.

The petitioners did not yield to the notices issued by the respondent for returning the land. In the meanwhile, the Land Tribunal registered occupancy in favour of the petitioners which came to be set at naught by a Coordinate Bench of the High Court in the year 2000 with a direction to the Tahsildar to decide on the resumption application first and thereafter on the basis of such a decision, whether occupancy should be granted or not, should be left to the Tribunal.

The Tahsildar passed the subject order directing resumption of land in favour of the ex-serviceman. The Assistant Commissioner negatived petitioners' appeal against the same.

Findings:

The bench noted that the family of the respondent orally partitioned properties in 1972 whereunder the subject land along with other fell to the share of Ex-Serviceman. A Memorandum of Partition came to be registered in 1974. This aspect was mentioned in the notices sent to the tenants.

The High Court rejected the contention of the Petitioners that the Respondent is not the owner of subject land and said, "Apparently, there were several lands with the joint Hindu family. This particular land fell to the share of Ex-Serviceman in a partition that was followed by a registered instrument decades ago. If a tenanted land is allotted to the share of a member of the joint family, the allottee becomes the landlord, hardly needs elaboration."

It added, "Therefore, the contention that the Ex-Serviceman had not created the tenancy indubitably falls to the ground."

Further, the petitioners contended that continuation of the tenancy by the Ex-Serviceman has to be by a written instrument. The court negated this by referring to Sections 5 & 15 of Karnataka Land Reforms Act, 1961. It said,

"Section 5(1) enacts an absolute embargo on leasing of agricultural land, and clause (a) of sub-section (2) carves out an exception to this when tenancy is created or continued by defence personnel. This subsection is enacted to facilitate resumption of land by the soldiers & seamen under section 15 of the 1961 Act, who run the risk of sacrificing their limbs or lives in protecting frontiers of the country."

Further it observed, "The Legislature differentiates between the creation of lease and its continuation when it comes to the intended resumption of tenanted land in favour of ex-serviceman; this intent of the Legislature is as clear as Gangetic waters."

Then referring to section 5 (3) of the Act the bench said,

"It only speaks of creation of tenancy being in writing and not the continuation of tenancy. However, Subsection (2) speaks of both creation and continuation of tenancy. If the legislature in its wisdom intended that both the creation and continuation of tenancy should be in writing, it would have worded sub-section (3) accordingly. An argument to the contrary amounts to manhandling the text of subsection (3) of section 5."

It observed that the law does not mandate any writing for continuation of the tenancy at all and that itself is a concession accorded to the "protectors of the Nation".

The court also rejected the contention that after the appointed day i.e.01.03.1974, all tenanted lands vested in the State and there was nothing to be partitioned and as a consequence, the so called Partition Deed was non est.

The bench held,

"Right to resume land is an incidence of ownership, cannot be denied. If the legislature in its wisdom grants such a right to Ex-Servicemen, the arguable fact that the tenanted land has vested in the State, does not cut it short."

Finally the court held,

"Law requiring bonafide on the part of a landlord for claiming resumption of property whether land or building, is construed liberally in favour of the landlord and therefore, bonafide has to be presumed in the absence of malafide. Absence of malafide would ordinarily lead one to presume bonafide, in a matter like this, consistent with the statutory policy of benefiting the Ex-Servicemen."

Following which the court opined,

"This is a case wherein a Lt. Colonel has been battling to get the land back from the tenants, since decades. The woes that the Ex-Serviceman has undergone all these decades, perplexes this court, to say the least. If a soldier who has protected the frontiers of the country for years whilst in service were to be treated this way in the evening of his life, what other defence personnel in service would think of, is left to the wild imagination of the society. Much is not needed to specify and less is insufficient to leave it unsaid."

Accordingly, it dismissed the petition and directed the petitioners to deliver possession of the property peaceably to the Respondent within eight weeks, failing which, the official respondents shall remove them by the Might of State and put the Respondent in possession thereof.

Case Title: NAFEEZA & Others v. STATE OF KARNATAKA & Others

Case No: WRIT PETITION NO.3420 OF 2013 (LR)

Citation: 2022 LiveLaw (Kar) 466

Date of Order: 16TH DAY OF NOVEMBER, 2022.

Appearance: T.I.ABDULA, ADVOCATE for petitioners; V SESHU, HCGP FOR R1-R3; SRIDHAR PRABHU, ADVOCATE FOR R4.