SUPREME COURT OF INDIA

Before:- K.T. Thomas and R.P. Sethi, JJ.

Civil Appeal No. 5 of 2001 Arising out of SLP (C) No. 7582 of 2000. D/d. 2.1.2001.

Bhimappa Channappa Kapali (Dead)By LRS. and others - Appellants

Versus

Bhimappa Satyappa Kamagouda and others - Respondent

Constitution of India, 1950, Articles 226 and 136 - Issues in question not determined - Tenancy whether created - Dispute with regard to land which belonged to `S' - A gift deed had been executed by `S' in favour of first respondent in 1951, but possession of the gifted property was retained by `S' till her lifetime - `S' died in the year 1996 - The appellant claims tenancy right in respect of the property on the ground that a tenancy was created by `S' in his favour - That claim was upheld by the Land Tribunal under the provisions of the Karnataka Land Reforms Act - First respondent filed a writ petition in the High Court - Single Judge interfered with the said order of the Land Tribunal by stating that the first respondent alone has right in the property on the strength of the gift deed - Order of Single Judge confirmed by Division Bench - Hence, appeal before Supreme Court - Record-of-rights prima facie indicated that a tenancy has been created in favour of the appellant on 2-7-1964 - Single Judge did not act on the said entry in the record-of-rights - The said aspect escaped consideration by the Division Bench - Held, setting aside order of Division Bench matter remitted to High Court for disposal of writ appeal afresh.

[Paras 3 to 5]

Cases Referred :-

Bhimappa Channappa Kapali v. Bhimappa Satyappa Kamagouda, Writ Appeal No. 7109 of 1999. D/d. 16.12.1999 (KAR).

ORDER

K.T. Thomas and R.P. Sethi, JJ. - Leave granted. The appellant herein is the son of one Shivawwas brother. The first respondent is the son of Shivawwas husbands brother, Girappa Kamagouda. The dispute is between these two persons in respect of a land which belonged to Shivawwa. A gift deed had been executed by Shivawwa in favour of the first respondent way back in 1951, but possession of the gifted property was retained by Shivawwa till her lifetime. Shivawwa died in the year 1996.

2. The appellant claims tenancy right in respect of the property on the ground that a tenancy was created by Shivawwa in his favour. That claim was upheld by the Land Tribunal under the provisions of the Karnataka Land Reforms Act. Against the said order the first respondent filed a writ petition in the High Court. A learned Single Judge interfered with the said order of the Land Tribunal by stating that the first respondent alone has right in the property on the strength of the gift deed. The learned Judge also held that the tenancy claimed by the appellant has not been substantiated. A Division Bench of the High Court while dealing with the writ appeal did not interfere Bhimappa Channappa Kapali v. Bhimappa Satyappa Kamagouda, Writ Appeal No. 7109 of 1999, order dated 16-12-1999 (KAR), with the Single Judges order. This appeal is in challenge of the judgment delivered by the Division Bench.

3. The learned counsel for the appellant relied upon the entries made in the record-of-rights kept in the office of Kabbur Village (Chikkodi Taluk). The said record-of-rights prima facie indicated that a tenancy has been created in favour of the appellant on 2-7-1964. The learned Single Judge did not act on the said entry in the record-of-rights. The sheet-anchor of the claim of the appellant is the said entry in the record-of-rights. The said aspect escaped consideration by the Division Bench.

4. The learned counsel for the first respondent adopted a twin contention to meet the aforesaid fact. First, is that no tenancy had been created by Shivawwa in favour of the appellant. Second, is that even if there was any such arrangement made between Shivawwa and the appellant the same would have come to an end with the death of Shivawwa, for, she had executed the gift deed in 1961 itself and the donee is the first respondent himself.

5. The learned counsel for the appellant contended that under the Karnataka Land Reforms Act if a tenancy has been created even by a limited owner (as in the case of Shivawwa) that tenancy would survive after the death of the donor and such tenancy would gain fixity of tenure.

6. We noticed that two crucial points had not been considered to by the Division Bench. They are:

(i) Whether a tenancy had been created by Shivawwa in favour of the appellant and the entries in the record-of-rights (referred to above) could be taken as proof thereof; and

(ii) If there was any tenancy whether that would survive the death of Shivawwa, particularly in view of the admitted position that after the gift deed had been created by Shivawwa in the year 1961 she had only a limited interest in the property.

7. As the Division Bench has not adverted to the above two crucial aspects we deem it necessary that the matter must go back to the Division Bench for disposal of the writ appeal afresh. For the said purpose we set aside the impugned order of the Division Bench and the matter is remitted to the High Court for disposal of the writ appeal afresh. This appeal is disposed of accordingly.

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