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IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH

AT GULBARGA

DATED THIS THE 21ST DAY OF FEBRUARY, 2013

BEFORE

THE HON’BLE MR.JUSTICE N.KUMAR

WRIT PETITION NO.759 OF 2003 (LR)

C/W

WRIT PETITION NO.46089 OF 2002 (LR)

IN WRIT PETITION No.759/2003

BETWEEN:

Smt.Ahmedi BegumW/o Mohamed Bahavuddin AhmedAge: 80 yearsSy.No.53, VakaligereGulbargaRep. by her Power of Attorney HolderShri. Naukath Pasha HassanS/o Mohamed Bahavuddin …Petitioner

(By Sri A Vijayakumar, Advocate)AND:

1. State of KarnatakaRep. by its Chief SecretaryGovt. of KarnatakaVidhan Soudha, BangaloreBangalore City

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2. The Land Tribunal GulbargaRep by SecretaryThe TahsildarGulbarga

3. Sajjada NashinMohammed Mohammed-ul-HusseniKhaja Banda Nawaz DargaRoza (b), GulbargaSince deceasedRep. by legal representative

3(a) Syed Shah Khusro HussainiS/o Late Dr.Syed Shah HusseniAge: 58 years, occ: Sajjada Nasheen & Mutuwalliof Darga Hazarat Khaja Banda Nawaj (RA)At. Badi Dewdi, Roza (B) Gulbarga

4. Shree Gulam DastageriS/o Meer Bahadur MohiuddinRep by legal heirsSmt.Shahnanafis w/o Anwarul HakGulbarga

LRs of Respondent No.4

4(a) Anwar Ul Haq S/o Noor Ul IslamAge: 60 years, Occ: BusinessR/o H.No.1-862 Noor Ul Islam CompoundMSK Mill Road, Gulbarga

4(b) Dr.Heena Azam D/o Anwarul HaqW/o Azam Mahmood, Age: 39 yearsOcc: Medical PractitionerR/o H.No.1-862 Noor Ul Islam CompoundMSK Mill Road, Gulbarga

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4(c) Dr.Lubna D/o Anwarul HaqW/o Khaja Khaleel AnwarAge: 37 years, Occ: Medical PractitionerR/o H.No.1-862 Noor Ul IslamCompound, MSK Mill RoadGulbarga

4(d) Najm Ul Islam @ AhmerS/o Anwarul Haq, Age: 33 yearsOcc: Business, R/o H.No.1-862Noor Ul Islam CompoundMSK Mill Road, Gulbarga

4(e) Moin Ul Islam @ SamarS/o Anwarul Haq, Age: 29 yearsOcc: Business, H.No.1-862Noor UL Islam compoundMSK Mill Road, Gulbarga

5. Sheik NadeemS/o ShadullahR/o Roza (b) Gulbarga

LRs of Respondent No.5

5(a) Goribee w/o late Sheik NadeemAge: 65 years, Occ: HouseholdR/o H.No.5-394 BehindDarga Peer Beeshar Roza (B)Gulbarga

5(b) Shaik Rasheed S/o late Sheik NadeemAge: 45 years, Occ: Gul FarooshR/o H.No.5-394, BehindDarga Peer Beeshar Roza (B)Gulbarga

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5(c) Maimoona Begum W/o NazeerD/o late Sheik NadeemAge: 43 years, Occ: HouseholdR/o Khaja Colony, Roza (B)Gulbarga

5(d) Salma Begum W/o Khaja MiyanD/o late Sheik Nadeem, Age: 40 yearsOcc:HouseholdC/o R/o H.No5-394 BehindDarga Peer Beeshar Roza(B)Gulbarga

5(e) Shahnaz Begum W/o Baba MiyanD/o late Sheik NadeemAge: 38 years, Occ: HouseholdC/o R/o H.No.5-394, BehindDarga Peer Beeshar Roza (B)Gulbarga

5(f) Shaheen Begum W/o Babu Miyan AdvocateD/o lage Sheik Nadeem, Age: 36 years,Occ: Household, R/o Islambad ColonyRoza (B), Gulbarga

5(g) Gousiya Begum (divorcee) D/o Late Sheik NadeemAge: 34 years, Occ: HouseholdR/o H.No.5-394 BehindDarga Peer Beeshar Roza (B)Gulbarga

5(h) Shaik Naseer S/o late Sheik NadeemAge: 30 years, Occ: Service in Saudi ArbiaR/o H.No.5-394 behindDarga Peer Beeshar Roza (B)Gulbarga …Respondents

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[By Sri Shivakumar Tengli, AGA for R1 & 2Sri Navadgi, Adv for R3Sri S R Krishnakumar, Adv for

M/s Lawyers for R4Sri Vinayak Apte, Adv for LR’s R5 (a-h)]

This Writ Petition is filed under Articles 226 and 227of the Constitution of India praying to quash vide Ann-ADT.29.11.2002 by R2 as Illegal. Direct the respondent togrant occupancy rights in respect of dwelling house andsurrounding areas, under section 7(3) of Karnataka CertainInams Abolition Act, 1977 as claimed by the petitioner.

IN WRIT PETITION No.46089/2002

BETWEEN:

Shaik NadeemS/o Shadulla SahebSince deceased by L.Rs.,

1. GoribeeW/o late Shaik NadeemAge 70 yearsOcc: Household and agri

2. Shaik Abdul RasheedS/o late Shaik NadeemAge 45 yearsOcc: Agri

3. Maimuna BegumW/o Md Nazeer HussainAge 43 yearsOcc: Household

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4. Saleema BegumW/o Mohd KhajaAge 41 yearsOcc: Household

5. Shahanaz BegumW/o Syed IsmailAge 39 yearsOcc: Household

6. Shaheen BegumW/o BabumiyanAge 37 yearsOcc: Household

7. Gousia BegumD/o late Shaik NadeemAge 35 yearsOcc: Household

8. Shaik NazirS/o late Shaik NadeedmAge 33yearsOcc: Agri

All R/o H.No.5-395Kala Huda, Roza (B)Gulbarga …PETITIONERS

(By Sri Vinayak Apte and Sri Sudheer KulkarniAdvocate)

AND:

1. State of KarnatakaBy its Secretary to Governmentof Karnataka

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Revenue DepartmentVidhana SoudhaBangalore – 560 001

2. Land TribunalGulbarga TalukGulbargaBy its Secretary

3. Syed Gulam DastagirSince deceased by L.R.,Smt. Shahana NafeezW/o Anwar-ul-HaqSince deceased by L.Rs.,

3(a) Anwar-ul-HaqS/o Noor-Ul-IslamAge 66 yearsOcc: Business

3(b) HeenaD/o Anwar-ul-HaqAge 40 yearsOcc: Business

3(c) LubunaD/o Anwar-ul-HaqAge 37 yearsOcc: Business

3(d) Najmul IslamS/o Anwar-ul-HaqAge 35 yearsOcc: Business

3(e) Moin-ul-Islam@ Mahe-ul-IslamS/o Anwar-ul-Haq

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Age 22 yearsOcc: Business

(Respondent Nos.3(a) to 3(e) are allResident of Noor-Ul-Islam CompoundMSK Mill RoadGulbarga – 585 121

4. Sajjada Nashin Dargaha ShariffSince deceased by LRSyed Shaha Khusro HussainiS/o Syed Shaha Mohd.Mohamadul HussainiAge 60 yearsOcc: Sajjada NasheenDargah Hajrat Khaja Banda NawazRoza(B), Gulbarga

5. The Wakf BoardBy its SecretaryCunnminghamRoadBangalore …RESPONDENTS

[By Sri Shivakumar Tangli, AGA for R1 and R2;Sri S. R. Krishna Kumar, Advocate for

M/s. Lawyer Inc for R3;Sri A M Nagral, Advocate for R3(d) and (e);Sri S. R. Malagatti, Advocate for R4(a);

Sri Prabhuling K. Navadgi, Advocate for R3(a)-(c) & R5)]

This Writ Petition is filed under Articles 226 and 227of the Constitution of India praying to quash the order of thesecond respondent dated 26-11-2002, passed inLRA/TNC/51/78-79 and LRA/TNC/45/78-79, as perAnnexure-E.

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These writ petitions coming on for preliminary hearingin ‘B’ Group, this day, the Court made the following:

O R D E R

Writ Petition No.759/2003 and Writ Petition

No.46089/2002 are filed by the rival claimants challenging

the order passed by the Land Reforms Tribunal, which has

granted occupancy rights in respect of the land in question

in favour of the contesting respondents and excluding the

buildings, which are there on the land in question.

2. For the purposes of convenience, the parties are

referred to as they are referred to in the Land Reforms

Tribunal.

3. The subject matter of this proceedingS is land

bearing Sy.No.53 measuring 11 acres 15 guntas of village

Vakkalgera, Gulbarga Taluka, Gulbarga District. The land

in question was a service Inam land attached to Hazrat

Khaja Banda Nawaj Darga Gulbarga. Gulam Dastageer filed

Form No.1 seeking grant of occupancy rights in respect of

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the said land. His case is that the said land has been leased

permanently to Smt.Afsarjahan Begum by way of registered

deed. The said Smt.Afsarjahan Begum executed a sale deed

giving tenancy rights in his favour in the year 1943. The

said deed refers to Sy.Nos.12 and 53. After execution of the

sale deed, he was in possession of both lands till the date of

the Certain Inams Abolition Act coming into force. Insofar as

Sy.No.12 is concerned his claim is already upheld and there

are no rival claims and there is no challenge.

4. The case of Shaik Nadeem rival claimant is that the

said land was a service Inam land attached to Hazrat Khaja

Banda Nawaj Darga, Gulbarga of which Sajjadanasheen

Darga Sharif. On coming into force of the Karnataka Land

Reforms Act, he filed Form No.7 on 19.11.1975 under

Section 45 of the Karnataka Land Reforms Act, for the grant

of occupancy rights in respect of said survey number. After

coming to know that the land is service Inam land, he filed

Form No.1 under Rule 5 of Karnataka Certain Inams

Abolition Act and Rules before the Land Tribunal. Syed

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Gulam Dastagir also had filed Form No.7 as well as Form

No.1 before the Land Tribunal. Syed Gulam Dastagir did not

file application personally but through Special Power of

Attorney namely Noorul Islam. One Smt.Ahmadi Begum also

had filed Form No.1 claiming occupancy rights over the

building situated at survey No.53 and certain open space.

Her application was rejected. When the respondent No.4

was minor, the said land was under the possession of

Afzar Jahan Begum and administration of the same was

being done by Subedar. It is only in the year 1948

when the 4th respondent attained majority, the disputed

land and another land were transferred under the

ownership of 4th respondent. In the meanwhile, Afzar

Jahan Begum sold the above said land and another for

consideration of Rs.27,500/- in favour of Syed Gulam

Dastagir and executed a registered sale deed dated 3rd

Isfindar 1354 Fasli, equivalent to 1944 A.D. After

purchasing the said land and another, his name was

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not transferred in respect of the lands covered under

the sale deed. Therefore, he filed O.S.No.5/1 of 1357

Fasli in the Court of Munsiff at Gulbarga, for

declaration that he is entitled to get `patta’ transferred

in respect of the lands covered under the same making

Afzar Jahan Begum as party. The said Afzar Jahan

Begum filed a written statement praying for decree in

terms of the prayer in the suit. On 05.01.1962 the said

Syed Gulam Dastagir executed a registered General

Power of Attorney in favour of Noorul Islam and

Anwarool Haq authorising them to sell the lands and to

receive money from the purchasers and to execute the

registered sale deeds in respect of the lands covered

under Annexure `C’. Syed Gulam Dastagir executed a

Will bequeathing both the lands covered under the sale

deed in favour of one of his daughters Shahan Nafees.

The said legatee under the Will has executed a

registered General Power of Attorney on 18.01.2002 in

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favour of her husband Anwarool Haq describing herself

as the owner and possessor of the property.

5. The aforesaid facts makes it clear that right

from the year 1944, Syed Gulam Dastagir was claiming

himself to be the owner of the land in dispute and

another land and in fact he obtained a decree from the

Civil Court as such owner. He has all along treated

Afzar Jahan Begum as the owner of the property. He

has also filed Form No.7 before the Land Tribunal,

Shahapur, showing Afzar Jahan Begum as the owner of

the property. It is only when he filed Form No.7 before

the Land Tribunal, Gulbarga, he has shown respondent

No.4 as the owner and Inamdar of the lands in dispute.

During the pendency of the proceedings he died. On the

basis of the Will executed by him the legatee has been

brought on record and on behalf of legatee, her power of

attorney holder has been prosecuting the matter.

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6. Respondent No.4, who is the Inamdar, in the

enquiry before the Tribunal has admitted that since the

time of the father of the petitioner namely Shadulla,

they are in possession as tenants under the oral lease

and paying the rent as fixed by him. The rent was fixed

in the year 1948 and after his father’s death, the

petitioner is in possession of the land in dispute till

1981. In the year 1981, by virtue of the order passed by

this Court in W.A. No.1164/1981, the Tahsildar of

Gulbarga Taluk was appointed as a receiver, who took

possession from the petitioner. Since then, it is the

receiver, who is in possession of the land in dispute.

Syed Gulam Dastagir was never in possession of the

property. For the first time in the year 1967-68 his

name was entered in Col. No.12 of the Record of Rights

in view of the decree passed by the Civil Court in

O.S.No.5/1 of 1357 Fasli. He has produced electricity

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bills showing he has got installed I.P. set to the well

situated in the land and meter No. 6839 which shows

he is cultivating the land. The 4th respondent also has

admitted that it is his father, who was the tenant and

after his death, he is continued as a tenant.

7. Smt.Ahamadi Begum yet another claimant

contends that the land in question is an Inam land. Her

father-in-law Ziya-Ulla-Shaha was given the land for

cultivation on lease during the year 1311 Fasli, as is

evident from Muntakhab. It is also evident from the

order passed by Awwal Talukadhar made in the year

1317 and 1352 Fasli. Her father-in-law constructed a

dwelling house after obtaining necessary permission

from the Jagir office in the year 1929 and since then,

they are residing in the scheduled property. Her father-

in-law was a permanent tenant and he was paying the

land revenue to the Jagirdhar during the relevant time.

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After his death, she continued to be in possession of the

property. Even after the abolition of the Inam, she is

paying the Corporation tax regularly. Her name appears

in the katha. She has made an application for grant of

occupancy rights in respect of the dwelling house and

surrounding area. In support of her claim under

Section 7(3) of the Karnataka Certain Inams Abolition

Act, 1977, she has adduced evidence. The Chairman of

the Land Tribunal was satisfied with the documents and

evidence produced by her. Therefore, he held that she

is entitled for grant of occupancy rights in respect of

dwelling house and surrounding area, whereas the four

members of the Land Tribunal rejected her claim.

8. The 4th respondent Sajjada Nashin of Dargha

admits the tenancy of Sheik Nadeem and disputes the

tenancy of Syed Gulam Dastagir.

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9. The Land Reforms Tribunal conducted an

enquiry and parties have adduced oral evidence. All of

them have been cross-examined. Documentary evidence

was also adduced by all of them. On consideration of

the aforesaid oral and documentary evidence on record,

the Tribunal held that the land in question is an Inam

land belonging to Dargha Hazarath Khaja Banda Nawaz,

a Religious Institution and Sajjada Saheb Roza is the

Inamdar of the same. The Inam land which belongs to

the Religious Institutions of Gulbarga region shall come

under the purview of the Karnataka Certain Inams

Abolition Act, 1977 and accordingly, the property in

dispute which is an Inam land falls under the purview

of the said Act. By operation of the said Act, the said

lands vests with the Government free from all

encumbrances from the appointed day. After

considering the rival claims of all the tenants, it held

there are no Revenue records to show that Shaik

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Nadeem was in possession of the two lands. The pump-

set fitted over the “Sakri Bhavin” has the receipts issued

by the KEB with an endorsement that they are in the

name of Afzal Begum, W/o.Noorul Islam. Therefore, the

KEB bills do not show that Shaik Nadeem is in

possession of the suit lands. In the absence of any

document to show that Shaik Nadeem was in

possession of the suit land on the appointed date as on

01.03.1974 and in the absence of any written document

to prove that after his attaining majority, the property is

leased in his favour by the 4th respondent, the Land

Tribunal held the tenancy put forth by him is not

established. Accordingly, his application was rejected.

10. Insofar as the claim of Syed Gulam Dastagir is

concerned, it held Smt.Afzar Jahan Begum, under a

registered document dated 23rd Aban 1341 Fasli i.e.,

1931 A.D., took the land on lease from the Dargha,

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which was under the supervision of a Subedar. It is

purchase of a permanent tenancy. Thereafter, she has

been paying lease amount regularly, for which receipts

have been issued. Later, with the permission of the

Dargha, she has built in the land a bunglow for her

residence. The said document, which is registered, is

more than 30 years old and therefore, the genuineness

of it cannot be in question in view of Section 90 of the

Indian Evidence Act. Smt.Afzar Jahan Begum

transferred the rights of permanent tenancy in favour of

Syed Ghulam Dastagir with the permission of Awal

Talukdar, vide order dated 11th Behman 1354 Fasli

(1944 A.D.) as the right of permanent tenancy is a right

on immovable property. Its transfer could be possible

only through a registered sale deed after obtaining

permission from the Government. Though Syed Ghulam

Dastagir was a Chartered Accountant residing at

Hyderabad, he was cultivating the land through hired

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labour and therefore he falls within the definition of a

tenant. Though in the Power of Attorney executed by

him in favour of his attorney, there is no specific recital

authorising his agent to file Form No.7 or Form No.1 in

view of the broad terms of the Power of Attorney coupled

with Order 3 Rule 2 of the Code of Civil Procedure, the

attorney was duly authorized to file Form No.1 and

Form No.7. The said act has been duly ratified

subsequently by execution of another power of attorney

and therefore, the Tribunal was of the view that as his

name has been mutated in the Record of Rights from

the year 1967-68 onwards upto 1973-74 and his name

is shown in the cultivators column No.12(2) in the

Record of Rights, he is entitled to grant of occupancy

rights under the Act.

11. Insofar as the claim of Smt.Ahmadi Begum is

concerned, the claim was restricted to the area in and

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around her house. The Chairman of the Land Tribunal

has held that she is entitled to grant of rights only to

the extent of the property occupied by her. The

members of the Tribunal have opposed to the said

grant. However, the Tribunal passed an order

unanimously deciding the grant of occupancy rights in

favour of Syed Ghulam Dastagir’s L.R. of

Smt.Shahnafees, W/o.Anwarul Haq excluding the area

occupied by the house of Smt.Afzal W/o.Noorul Islam,

the total area of 11 acres 15 guntas as per Section 5(1)

of the Karnataka Certain Inams Abolition Act, 1977.

The application filed by Shaik Nadeem has been

unanimously rejected. The Chairman thought it proper

to grant the rights of area of house consisting of seven

rooms and 10 feet around it in favour of Smt. Ahmedi

Begum, W/o.Mohammad Bahauddin as per Section 7(3)

of the Act. But the other Members of the Land Tribunal

have opined to reject this claim. The said order was

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passed on 26.10.2002. Aggrieved by the said order,

these two writ petitions are filed.

12. The learned counsel appearing for Shaik

Nadeem, assailing the impugned order contended firstly

that the registered deed relied on by Syed Ghulam

Dastagir do not disclose that what is transferred to him

is a lease hold right. On the contrary, it shows what is

sold to him is the `patta’ rights in the property. His

vendor herself did not have any tenancy rights and the

document on which reliance is placed, do not show that

the Dargha has executed any deed transferring the

tenancy rights in her favour. Therefore, the claim of

tenancy on the basis of the two registered documents is

unsustainable. Secondly, it was contended that Syed

Ghulam Dastagir is a Chartered Accountant by

profession. He has been residing in Hyderabad from the

year 1962. He was neither personally cultivating the

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land nor he was supervising the cultivation of the land.

It is his Power of Attorney, who are managing the

properties and therefore, when he did not personally

cultivate the land, he is not entitled to grant of tenancy

rights under the Act. Thirdly, the General Power of

Attorney does not authorize his attorneys to file Form

No.1. The General Power of Attorney is of the year

1962. Inams Abolition Act had not been enacted on

that day and therefore, there was no intention on the

part of Syed Ghulam Dastagir to authorise his attorney

to file any such applications under that Act. In that

view of the matter, the application filed in Form No.1

claiming occupancy rights is not duly authorized and

what is illegal at the inception cannot be made legal by

a retrospective validation of such illegal Act. Fourthly,

it was contended that after the 4th respondent attained

majority, he is cultivating the land in dispute. The said

land was leased to his father, who was cultivating the

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land during his life time and after his father’s death, he

is cultivating the land. Though mutation entries are not

there, rent receipts are not there, he has produced

documents by way of payment of electricity bills, which

demonstrates that he has dug a borewell and with that

water, he is cultivating the land and he is paying the

electricity charges, which proves his case of tenancy in

respect of the land. That apart, in the evidence

recorded before the Tribunal, the 4th respondent in

unequivocal terms has admitted the tenancy of his

father and after his death, his tenancy. This document

coupled with the tenancy and other circumstances,

which are brought on record, clearly proves his tenancy

in respect of the land in question. Unfortunately, the

Tribunal has not properly appreciated this factual and

legal aspect and committed serious error in rejecting the

application and therefore, he seeks for setting aside the

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order and allowing his application and dismissing the

application of the rival claimants.

13. Per contra, the learned counsel appearing for

Syed Ghulam Dastgir submits that it is not in dispute

that the land in question is an Inam land. It is also on

record that Inamdar has not cultivated the land

personally. Smt.Afzar Jahan Begum purchased the

right to tenancy, under a registered document from the

Subedar, who was managing the affairs of the Dargha.

She was personally cultivating the land. The rent

receipts produced clearly demonstrates the tenancy and

cultivation of the land by her on payment of rent to the

Dargha. In fact she sought for permission to construct

a Bungalow, which was granted, in pursuance of which

she constructed a Bungalow and she was living there.

In the year 1943 Syed Ghulam Dastagir purchased the

said right of tenancy from her for a valuable

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consideration under a registered lease deed. He was

cultivating the land from 1943 to 1962 and in the year

1962 when he moved over to Hyderabad, he executed

Power of Attorney and thereafter he was cultivating the

land in question through his Power of Attorney Holder.

His name is entered in the mutation register on the

basis of the said sale deed as well as a decree of Civil

Court showing him as a cultivator of the land and the

RTC also shows the crops, which are grown on the said

land. After the Act came into force, the land vested with

the Government. His attorney has filed an application in

Form No.1. He has given evidence, he has produced

materials to show that he was a tenant on the appointed

date. A person who took property under the lease

instrument is a tenant as defined under Section 2(34) of

the Karnataka Land Revenue Act, who is eligible for

grant of occupancy rights under the provisions of the

Karnataka Certain Inams Abolition Act, 1977.

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Therefore, the Tribunal was justified in upholding his

claim and granting occupancy rights. The said case

does not call for any interference.

14. The learned counsel appearing for Smt.Ahmedi

Begum submits that in terms of the Act, a building

constructed on the Inam land do not vest with the

Government at all. By misconception of law, an

application is filed claiming occupancy rights in respect

of the Bungalow as well as the surrounding land,

though the Chairman of the Tribunal upheld the claim,

four members of the Land Tribunal rejected it. But in

law, as the land did not vest with the Government and

as the Act declared that the person in possession of the

building can continue to hold the said building, the said

legal possession may be made clear so that her

possession is not disturbed by any one and they have

no claim for the vacant land.

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15. In the light of the aforesaid facts and the rival

contentions, the point that arises for my consideration

in these proceedings is:

(a) Whether the finding of the Land Tribunal

that Syed Ghulam Dastagir is a tenant

and Shaik Nadeem is not the tenant

requires interference?

(b) Whether Smt.Ahmedi Begum is entitled to

grant of ownership rights under Sub-

Sections (2) & (3) of Section 7 of the Act?

Point No.1

The land in question is an Inam land. It is a

service land attached to the Darga Khaja Bande Nawaz.

Gulbarga. This fact is not in dispute. The Inam land

vested with the Government under the provisions of the

Karnataka Certain Inams Abolition Act, 1977 under

Section 4 of the Act. After such vesting, Section 5 of the

Act provides for registration of occupancy rights in

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favour of Inamdar as well as in favour of the tenant. In

the instant case, Inamdar has not filed any application

under the Act for registration as an occupant. It is only

the tenants, who have filed application for registration

of occupancy rights. Every tenant of the Inamdar or

holder of a minor inam shall not be entitled to be

registered as an occupant of lands in respect of which

he was a tenant immediately before the first day of

March, 1974. Therefore, in order to find out whether

the applicant, who is claiming to be a tenant is entitled

to be registered as an occupant under Section 5 of the

Act, what has to be seen is whether he is a tenant

immediately before the first day of March 1974. The

word `tenant’ has not been defined under the Act.

However, Sub-Section (2) of Section 3 of the Karnataka

Certain Inams Abolition Act, 1977 provides that “the

words and expressions used, but not defined in the Act,

shall have the meaning assigned to them in the Act or the

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Karnataka Land Reforms Act, 1961”. The Act has been

defined to mean the Karnataka Land Revenue Act,

1964. The word `tenant’ has been defined under the

Karnataka Land Revenue Act, 1964 at Section 2(34).

`Tenant’ means a lessee whether holding under an

instrument or an oral agreement and includes the

categories mentioned therein in the said provision.

16. In the instant case, Syed Ghulam Dastagir is

claiming to be a lessee under an Instrument whereas

Shaik Nadeem is claiming to be a lessee under an oral

agreement. Syed Ghulam Dastagir has produced the

registered document under which, he claims to be a

lessee. He has also produced the registered document

under which his lessor has acquired tenancy rights.

Both these documents are not disputed. The argument

is the document executed in favour of Syed Ghulam

Dastagir is a document executed by the lessor and it did

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not show that it is a lease and the document executed

by the lessor in favour of the lessee proceeds on the

assumption that the title to the property is transferred

for a valuable consideration and therefore, the said

documents cannot be construed as piece of evidence to

show that Syed Ghulam Dastagir is a lessee under an

instrument. In addition to these two documents, we

have on record rent receipts executed by the Inamdar in

favour of Smt.Afzar Jahan Begum from 1952 onwards.

The Record of Rights produced in the case shows the

name of Syed Ghulam Dastagir is entered from the year

1966-68 and it is there up to 01.03.1974. Prior to that

Syed Ghulam Dastagir filed a suit in O.S. No.115/1970

against Smt.Afzar Jahan Begum, where a consent

decree was passed by the Civil Court declaring his title.

The suit was decreed by consent on the basis of which

the mutation entry was made. The other suit was filed

by Syed Ghulam Dastagir against Inamdar in

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O.S.No.115/1970, which came to be dismissed as

withdrawn on 24.08.1999. During the said period, an

interim order of temporary injunction was in force

preventing the Inamdar from interfering with the

possession of the property. As against this evidence,

Shaik Nadeem relies on the admission of the Inamdar

creating the tenancy in his favour and in favour of his

father. Electricity bills for the period from 1968-69 are

produced. Further they contend that the suit filed by

Syed Ghulam Dastagir was withdrawn, which according

to them shows he has no right to the property. When

we take into consideration this material evidence on

record, it shows that the Inamdar was not cultivating

the land. At an undisputed point of time, two registered

documents came into existence, which are not in

dispute. Rent receipts are issued, mutation entries are

made, suit was filed in the year 1970 and for nearly 29

years, the order of injunction was in favour of Syed

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Ghulam Dastagir. As opposed to this, except the

admission of the Inamdar, who was a minor at the time

of execution of the aforesaid two registered documents

and the rent receipts coming into existence, admitting

the tenancy of Shaik Nadeem or his father, which are

not corroborated by any evidence on record, do not

carry any weight. Electricity bill on which a reference is

made is not in the name of Shaik Nadeem. It is in the

name of Afzar Jahan Begum. It supports the case of

Syed Gulam Dastagir. Therefore, no reliance can be

placed on the said document. The dismissal of the suit

after 29 years during which period there was an order of

temporary injunction was in force clearly demonstrates

neither the Inamdar nor any persons claiming under

him were in possession of the property. Under these

circumstances, the finding recorded by the Tribunal

that Syed Ghulam Dastagir’s tenancy is proved and

Shaik Nadeem’s tenancy is not proved is not based on

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legal evidence. The argument was those two registered

documents do not show transfer of tenancy rights. It

shows the transfer of absolute right in the property. It is

true there are no express words transferring the

tenancy rights. Whatever right the lessor acquired from

the Inamdar is transferred to the lessee and lessee

acquired whatever rights the lessor had in the property.

When he is claiming a lessor’s right of tenancy and it is

only tenancy right, which his lessor could have acquired

from the Inamdar. Mere mentioning of higher right

would make no difference in the eye of law. In that way,

a valid claim cannot be negatived. That is what

precisely the Tribunal has held.

17. Insofar as the contention that to be entitled to

be registered as an occupant, the tenant must be

personally cultivating the land on the appointed date is

concerned, it has no substance. As set out above, the

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Act does not define who is a `tenant’. For the definition

of a `tenant’, we have to fall back upon the definition

under the Karnataka Land Revenue Act and the

Karnataka Land Reforms Act. The Karnataka Land

Revenue Act defines a `tenant’ means a lessee whether

holding under an Instrument or under a oral lease. To

satisfy the requirement of a `tenant’ under the

Karnataka Land Revenue Act, it is not necessary that he

should be a tiller of the land. If he is a lessee under an

instrument or under an oral agreement, that satisfies

the requirement of `tenant’ under the Act. In fact the

Apex Court, had an occasion to deal with the purpose

and scope of the Land Reforms Act and the Inams

Abolition Act and in the case of Muniyallappa V/s.

B.M.Krishnamurthy and others reported in AIR 1992

SC 212 it was held that the purpose and scope of the

Karnataka Land Reforms Act and the Karnataka Inam’s

Abolition Act are distinct. The Inams Abolition Act was

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enacted for the purpose of abolition of Inam tenures and

conversion of such tenures into Ryotwari tenure and in

that process grant of occupancy rights to the Inamdars

and the three classes of tenants specified in that Act.

The purpose of the Land Reforms Act, however, is quite

different. The main purpose was to abolish the

relationship of landlord and tenant in respect of the

tenanted lands and to confer occupancy rights on

tenants, who are personally cultivating the lands.

Therefore, the rejection of the claim of the tenant under

the Inams Abolition Act does not lead to the inference

that he has no claim for occupancy right under the

Land Reforms Act. Where the tenant claims that he is a

`deemed tenant’ as provided under Section 4 of the

Land Reforms Act, the requirement of deemed tenant,

as provided under Section 4 of the Tenancy Act, must

be determined by the Land Tribunal.

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18. Therefore, under the provisions of the Inams

Abolition Act, the tenancy will be conferred not only on

the tenant, but also on the Inamdar whereas under the

Land Reforms Act, tenancy right is conferred only on

the tenant that too, who is the tiller of the land as on

the appointed day. That requirement is not necessary

for grant of occupancy rights under the Inams Abolition

Act. Therefore, the Legislature consciously has not

defined the word `tenant’ under the Act and has

adopted the definition of `tenant’ both under the

Karnataka Land Revenue Act as well as under the

Karnataka Land Reforms Act so that a tenant, who falls

under any one of these definitions is entitled to grant of

occupancy rights. The definition of `tenant’ under the

Karnataka Land Revenue Act do no insist on the tenant

tilling the land personally. If a lease is created under an

instrument or orally, then notwithstanding the fact he

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may not be tilling the land, he is entitled to grant of

occupancy rights under the law.

19. Syed Ghulam Dastagir claims lease hold rights

under a registered instrument and subsequently, his

name is entered in the Record of Rights from the year

1967-68 till 01.03.1974 the appointed date and he had

the benefit of interim order restraining the defendant

from interfering with his possession of the property for a

period of 29 long years commencing from 1970.

Therefore, the Tribunal was justified in granting

occupancy rights in favour of Syed Ghulam Dastagir.

20. It was further contended that this application

is filed by a person, who is not duly authorized. Though

he is a power of attorney holder, the power of attorney

do not expressly authorize the power of attorney holder

to file such application. Therefore, the contention that

the application in Form No.1 filed before the Tribunal is

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one without authority and on that basis, no occupancy

rights could have been granted, could not be

entertained. It is not in dispute that the Power of

Attorney has been executed in the year 1962. It was a

General Power of Attorney. On the day the Power of

Attorney was executed, the principal was a Chartered

Accountant by profession and was a permanent resident

of Hyderabad. Therefore, he appointed two attorneys to

manage the properties, to let out the land, to collect

rent, to cultivate the land by hired labour and to pay

them hire and all acts, which are necessary for the

proper management of the property in question.

Thereafter, the Power of Attorney further states that the

attorney holder is employed to do all other lawful acts

and things as effectually as he could do the same in

person concerning all the present and further legal

proceedings. Whatsoever the said attorneys had been

authorized by the principal employer to do the same in

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his name and in his behalf and specifically set out

several functions. Filing of Form No.1 under the Inams

Abolition Act was not expressly mentioned there.

Therefore, the question for consideration is;

In the absence of an express provision

whether the attorney was authorized to file

Form No.1, which they have filed?

Chapter X of the Indian Contract Act, 1872 deals

with Agency and appointment and authority of agents.

Section 186 provides that the authority of an agent may

be expressed or implied. As per Section 187 an

authority is said to be express when it is given by words

spoken or written. An authority is said to be implied

when it is to be inferred from the circumstances of the

case; and things spoken or written, or the ordinary

course of dealing, may be accounted in the

circumstances of the case. An agent having an

authority to do an Act has authority to do every lawful

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thing which is necessary in order to do such Act. An

agent has authority in an emergency, to do all such Acts

for the purpose of protecting his principal from loss as

would be done by a person of ordinary prudence, in his

own case under similar circumstances.

21. A reading of these provisions makes it very

clear that the authority conferred on an agent may be

expressed or implied. In the case of emergency, an

agent is permitted to do all such acts, which are

necessary to protect the interest of the principal. In the

event of an agent performing acts, which are not

expressly or impliedly provided for in the Power of

Attorney but if it is done to protect the interest of the

principal, an opportunity is given to the principal either

to repudiate or ratify such Act.

22. Section 197 deals with ratification, which

again may be express or implied. Ratification may be

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expressed or may be implied in the conduct of the

person on whose behalf the acts are done. Section 196

expressly provides that where acts are done by one

person on behalf of another, but without his knowledge

or authority, he may elect to ratify or to disown any

such acts. If he ratifies them, the same effects would

follow as if they had been done personally. Therefore,

unless such act is repudiated by the principal, there is

implied ratification. There could be an express

ratification by executing the same after the performance

of the said Act. When once such document is executed,

the ratification dates back to the execution of the Power

of Attorney, at any rate immediately prior to the said act

making the act a valid one.

23. In the instant case, in the year 1962 when the

Power of Attorney was executed, it was a General Power

of Attorney given to manage the property. All powers for

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the proper management of the property was conferred to

the attorney. It is true at that point of time it was not in

contemplation of the principal that the State Legislature

would pass the Inams Abolition Act, the effect of which

would be that all the Inams would be abolished and all

the Inams would vest with the Government free from all

encumbrances and the Inamdars or the tenants were

given an opportunity to claim occupancy rights. But

the fact remains that when an agent has been entrusted

with the management of the property by such

instrument, if the right of the principal is taken away by

the Government and if the very same Legislation gave a

right to file an application to the principal to claim back

the property, the person in management owes a duty to

file an application and claim back the property. If the

attorney has performed that act, it is one of the lawful

acts, which he was expected to perform under the power

of attorney under which he was appointed. Therefore,

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the power of attorney being a General Power of Attorney,

the terms of the power of attorney has to be understood

in the context of the attorney holder doing all lawful

acts to protect the interest of the principal and to see

that the principal does not suffer any loss or damage in

respect of the property management that has been

entrusted to the agent. Therefore, it is not possible to

hold that the power of attorney executed in the year

1962 by Syed Ghulam Dastagir in favour of his agent do

not authorize the attorney holder to file Form No.1. At

any rate, after he filed Form No.1 and started

prosecuting the matter, ratification is done by executing

another power of attorney. As long as the principal has

not repudiated, the act of the agent, there is an implied

ratification and subsequently, the ratification is made

expressly and once the ratification is made, it dates

back to the date prior to the filing of Form No.1 and

rightly the Tribunal has held that Form No.1 filed is

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valid and it is not unauthorized as contended by the

rival claimant. In that view of the matter, I do no see

any merit in the writ petition filed by the rival claimant

challenging the grant of occupancy rights in favour of

Syed Ghulam Dastagir.

Point No.2

24. Insofar as the claim of Smt.Ahmedi Begum is

concerned, Section 7 of the Karnataka Inams Abolition

Act, 1977 provides for vesting of buildings which reads

as under:

7. Vesting of buildings.– (1) Every building

other than a building referred to in sub-

section (2) situated within the limits of a

minor inam or an inam which was owned

immediately before the appointed date by the

holder of a minor inam or the inamdar, as the

case may be, shall with effect from such date

vest in the holder of minor inam or the

inamdar.

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(2) Every private building situated within the

limits of an inam shall, with effect from the

said date, vest in the person who owned it

immediately before that date.

(3) Notwithstanding anything in sub-sections

(1) and (2), where a tenant is in occupation of

a dwelling house on a site belonging to the

inamdar or the holder of a minor inam such

tenant shall not be evicted therefrom but shall

be conferred with ownership thereof and the

site on payment of such amount as the

Tribunal may fix having regard to, -

(i) the land revenue payable on the

land;

(ii) who constructed the dwelling

house; and

(iii) such other factors as may be

prescribed.”

25. A reading of the aforesaid provisions makes it

clear that any building, which is situated in the Inam

land vests with the Inamdar and it does not vest with

the Government. If other than the Inamdar the said

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building is owned by any other person, then with the

coming into force of this Act, that building vests with

the owner. In other words it neither vests with the

Government nor vests with the Inamdar. But if a tenant

is in occupation of a dwelling house on a site belonging

to the Inamdar, under Section 7(3) of the Inams

Abolition Act, such tenant shall not be evicted

therefrom, but shall be conferred with ownership

thereof and the site on payment of such amount as the

Tribunal may fix having regard to,– (i) the Land Revenue

payable on the land; (ii) who constructed the dwelling

house; and (iii) such other factors as may be prescribed.

26. The material on record discloses that the

father-in-law of Smt.Ahmedi Begum took the land on

lease from the Inamdar and with permission of the

Inamdar he constructed a residential unit and he was

there till death. After his death, his daughter-in-law

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continued to be in possession. On the day, the Act

came into force, a right is conferred on the tenant under

the Inam under Section 7(3) of the Karnataka Certain

Inams Abolition Act, 1977 to claim occupancy right in

respect of the said building on the land belonging to the

Inamdar. The Chairman was fully justified in granting

occupancy rights in favour of Smt.Ahmedi Begum. The

four members of the Tribunal without understanding

the legal consequences, without any reasons have

refused to subscribe their signature to the view of the

Chairman. The law is clear on the point. There is no

discretion left. Once a tenant has constructed a building

in the Inam land and he is claiming tenancy under the

Inamdar by operation of law, the ownership rights of the

said built portion is to be conferred on the tenant

subject to the requirements prescribed in the Section.

Therefore, the order passed by the Tribunal rejecting

her claim is unsustainable. Accordingly, it is set-aside.

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27. Hence, I pass the following order:

(a) W.P.No.759/2003 is allowed.

(b) The Land Reforms Tribunal is directed to grant

occupancy rights in respect of the building

under Sub-Section (3) of Section 7 of the

Karnataka Certain Inams Abolition Act, 1977 to

the petitioner Smt.Ahmedi Begum collecting

the necessary amount.

(c) W.P. No.46089/2002 is dismissed.

Parties to bear their own costs.

Sd/-

JUDGE

Sdu/SPS