Mohan M. Shantanagoudar, J. - (1.) The judgment dated 14.11.2007 passed by the Division Bench of the High Court of Karnataka at Bangalore in Writ Appeal No. 984 of 2007 is called into question in this appeal. By the impugned judgment, the Division Bench set aside the order dated 21.05.2003 of the Tehsildar, Ankola Taluk and the consequential mutation entry No. 7948 dated 28.05.2003 in respect of the suit property; the order dated 30.07.2005 passed by the Assistant Commissioner, Kumta and the order dated 23.03.2006 passed by the Deputy Commissioner, Uttara Kannada, Karward upholding the aforesaid mutation entry, as well as the order dated 22.03.2007 passed by the Single Judge in Writ Petition No. 12482 of 2006 dismissing the respondents' writ petition for quashing of the mutation entry.
(2.) The brief facts leading to this appeal are as under: The Respondent Nos. 1(a) to (e) in the present appeal claim that one late Baba Bommayya Bhat was the archak of the appellant Ganapathi Dev temple and he was in actual possession and enjoyment of agricultural land bearing Survey No. 68/2001 to the extent of 4 guntas (mentioned in some of the records as 3 guntas) (hereinafter 'suit property') situated in the village of Avarsa, which he had been cultivating since 1969; that after the death of the said Baba Bommayya Bhat, his son, the late Balakrishna Bhat (husband of Respondent No. 1(a) and father of the Respondents No. 1(b) to 1(e) herein) continued in possession of the suit property and consequently the name of Balakrishna Bhat was entered into the revenue records. Further that the deceased Balakrishna Bhat, after obtaining necessary permission from the Panchayat, constructed a house in the suit property in 1994 and obtained an electricity connection for the said house; and that after his demise, Respondent Nos. 1(a) to (e) are residing in the same house. Respondent Nos. 1(a) to (e) therefore claimed to be the deemed tenants of the suit property under the Karnataka Land Reforms Act, 1961 ('1961 Act').
(3.) It is pertinent at this juncture to note the scheme for land reforms as provided under the 1961 Act. Section 2(34) of the 1961 Act defines 'tenant' as meaning an agriculturist who cultivates personally the land he holds on lease from a landlord and includes a person who is deemed to be a tenant under Section 4 of the Act. Section 4 defines a deemed tenant as follows: "4. Persons to be deemed tenants.-A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not,- (a) a member of the owner's family, or (b) a servant or a hired labourer on wages payable in cash or kind but not in crop share cultivating the land under the personal supervision of the owner or any member of the owner's family, or (c) a mortgagee in possession." Under Section 44 of the 1961 Act, as substituted by Amending Act No. 1 of 1974, all lands held by or in possession of tenants immediately prior the commencement of the Amendment Act shall with effect from 01.03.1974 ('date of vesting') vest with the State Government. Section 45(1) of the 1961 Act provides for the right of tenants to be registered as occupants of the land vested with the Government as follows: "45. Tenants to be registered as occupants of land on certain conditions.-(1) Subject to the provisions of the succeeding sections of this Chapter, every person who was a permanent tenant, protected tenant or other tenant or where a tenant has lawfully sublet, such sub-tenant shall, with effect on and from the date of vesting, be entitled to be registered as an occupant in respect of the lands of which he was a permanent tenant, protected tenant or other tenant or subtenant before the date of vesting and which he has been cultivating personally." Section 48A of the 1961 Act enables any person entitled to be registered as an occupant of land under Section 45 to make an application to the Land Tribunal praying for such registration. Respondent No 1(b), Vitthaldas Bhat, filed a Form-7 application under Section 48A in 1979 for grant of occupancy rights in respect of the suit property in his favour, Form-7 being the format for such application as prescribed under Rule 19 of the Karnataka Land Reform Rules, 1974 ('1974 Rules'). However, during course of enquiry before the Land Tribunal, Respondent No 1(b) himself deposed that he was not cultivating the property and the Form 7 application was made by him on a wrong notion. He stated that the suit property is to remain in the name of the appellant temple and pleaded for dismissal of his application. Hence the Land Tribunal by order dated 28.01.1981 rejected the said Form 7 application filed under Section 48A of the 1961 Act. Thus, it is clear that as of 28.01.1981, and prior thereto, Respondent Nos. 1(a) to (e) were not cultivators of the property, and therefore could not be deemed tenants under Section 4 of the 1961 Act. By Amending Act No. 23 of 1998, Section 77A was inserted in the 1961 Act which gave one more chance to a person who failed to apply for registration of their occupancy rights under Section 48A within the period specified therein, to apply to the Deputy Commissioner for such registration. Rule 26C of the 1974 Rules prescribes that the format of the application to the Deputy Commissioner would be per Form 7A of the Rules. In view of rejection of his son's Form 7 application under Section 48A, the deceased Balakrishna Bhat was not entitled to apply for grant of occupancy rights under Section 77A of the amended 1961 Act. He nonetheless filed a Form 7A application under Section 77A. The Assistant Commissioner, Kumta by order dated 15.03.2000 rightly rejected the application of the deceased Balakrishna Bhat on the ground that it was not possible to confer occupancy rights or grant in view of the earlier Land Tribunal order dated 28.01.1981.;