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Judgment
Huluvadi G. Ramesh, J.—Challenging the order of the Land Tribunal, Shivamogga dated 8.8.2011, the petitioner who claims to be a tenant is before this Court seeking for quashing of annexure B - the order of grant. According to the petitioner (represented by her legal representatives), in respect of property in Sy. No. 97 of Belalakatte Village to the extent of 2.18 acres, their father was declared as a tenant by the order of the Deputy Commissioner way back in the year 1964. Accordingly, on the application filed for grant of occupancy rights, the same was granted in his favour by the Land Tribunal on 9.7.1976. Aggrieved by the same, respondent herein filed a writ petition before this Court in WP 21534/1991 and after hearing, the matter was remanded by order dated 24.10.1996 against which WA 9712/1996 filed by Nanjundamma came to be dismissed. Subsequently, the impugned order came to be passed by the Land Tribunal canceling the occupancy rights having held that the respondent is the owner of the property and it is not a tenanted property. Assailing the said order, petitioners are before this Court.
The contention of the petitioners'' counsel is, Nanjundamma and her husband''s name continued to be in the RTC up to 1974-75 and she is in possession of the property as a tenant. What is being sold in the court auction in favour of the respondent is only the proprietary right and not tenancy right. As long as petitioner and her predecessor is held to be a tenant, her right does not get extinguished. Accordingly it is contended that the earlier order passed by the Land Tribunal granting occupancy rights in favour of Nanjundamma''s husband was legal and the impugned order at annexure B dated 8.8.2011 is not sustainable.
According to the counsel for the contesting respondent, property in question was purchased in court auction as the husband of the petitioner had raised a loan and for default, property was sold in court auction. Though the name of the tenant continued in the RTC, he got effected the mutation entries during 1975-76, by confirming the auction sale way back during October 1975. Possession was taken on 22.6.1973. It is contended, as on 1.3.1974 petitioner was not in possession as tenant rather the proprietary right as well as possessory right has been transferred to the contesting respondent by virtue of which the right of tenancy is extinguished and that, unless as on 1.3.1974 a person claiming to be a tenant is in possession, he is not entitled for occupancy rights. Relying upon the case of Rayappa Basappa Killed Vs. The Land Tribunal and Others, learned counsel contended that unless a person is in possession as on 1.3.1974 as a tenant, the land does not vest in the State as per S. 44 of the Act and cannot be a subject matter to be registered as tenant as per S. 45 of the Act.
The petitioner has lost title in respect of the property that too in a court proceeding when the property was alienated. Any right accrued to the petitioner as a tenant or otherwise is extinguished by operation of law. Even if there is any illegality while attaching the property for sale on the ground that it is a tenanted land, that could have been challenged by the petitioner or his predecessor before the appellate forum. Having not done so and also when possession has already been delivered as per court proceedings on 22.6.1973 when the contesting respondent was a successful bidder in the court auction having purchased the same and became the owner of the land, the right of the petitioner or their predecessor if any, is extinguished by operation of law. As held by the Division Bench in the above cited case, since as on 1.3.1974 petitioner was not in possession as tenant, land does not vest in the State as per S. 44 of the Land Reforms Act and also tenant cannot be registered as an occupant.
In that view of the matter, the order of the Land Tribunal, Shimoga rejecting the application of the petitioner observing that as on 22.6.1973 an extent of 2.10 acres in Sy. No. 97 was in possession of the 3rd respondent and petitioner failed to prove that he was a tenant as on 1.3.1974, cannot be said to be illegal. Petition is dismissed.