1. Whether Bhimappa Channappa Kapali (appellant), who is represented by his legal representatives, was entitled to be declared as an occupant of land comprised in survey Nos. 135/3, 135/4, 135/7, 135/8,135/9, 135/12, 212/2, 216/1, 219/1 and 223/2 of Village Kabbur, TalukChikodi, Karnataka and whether the High Court committed an error by setting aside the order passed by the Land Tribunal, Chikkodi (for short, the Tribunal) in favour of the appellant are the questions which arise for consideration in this appeal filed against the judgment of the Division Bench of the Karnataka High Court.

2. Girappa Kamagouda owned the land in question. He is said to have cultivated the land till his death. His wife Shivavva executed gift deed dated 17.1.1961 in favour of respondent No.1 Bhimappa Satyappa Kamagouda (grandson of the brother of Girappa Kamagouda) and got the same registered. The gift deed contained a stipulation that during her lifetime, Shivavva would retain possession of the land for the purpose of maintenance.

3. Soon after executing the gift deed, Shivavva filed O.S. No.275of 1961 for cancellation of the gift deed by alleging that she had executed the same due to fraud practised by respondent No.1. Respondent No.1 contested the suit and denied the allegation that the gift deed was an end product of fraud or misrepresentation.

4. On the pleadings of the parties, the trial Court framed the following issues:

"1. Whether plaintiff proves that the defendants took the gift deed from her on dated 17/1/1961 by misrepresentation and committing fraud on her, as alleged in the plaint

2. Whether the suit is properly valued for the purposes of court fees and jurisdiction

3. Is plaintiff entitled to the reliefs sought for

4. What decree or order"

5. In support of her claim, Shiva was examined herself and the appellant, who was the son of her elder brother and was living with her from childhood. Respondent No.1 examined himself and other witnesses to prove that the gift deed was valid and it was vitiated by fraud or misrepresentation.

6. After considering the pleadings of the parties and the evidence produced by them, the trial Court dismissed the suit vide judgment dated10.10.1963 by recording a finding that the gift deed was not vitiated by fraud or misrepresentation. The first and the second appeals filed by Shivavva were dismissed by the lower appellate Court and the High Court respectively and the judgment of the trial Court was upheld.

7. After about three years of dismissal of the second appeal filed by Shivavva, the appellant made an application under Section 48A(1) read with Section 45 of the Karnataka Land Reforms Act, 1961 (for short, the Act), as amended by Act No.1 of 1974 read with Rule 19(1) of the Karnataka Land Reforms Rules, 1974 (for short, the Rules) for declaring him as an occupant of the land by asserting that he was inducted as a tenant by Shivavva and that he was cultivating the land for many years. His brother Rudrappa Shivappa Kapali also submitted similar application. Both the applications were dismissed by the Tribunal vide order dated 2.7.1976.

8. Rudrappa Shivappa Kapali did not challenge the order of the Tribunal but the appellant did so by filing Writ Petition No.7085/1976.The learned Single Judge dismissed the writ petition by observing that the appellant had failed to adduce any evidence to prove that he was a tenant of the land in question. Writ Appeal No.2752/82 filed by the appellant was allowed by the Division Bench of the High Court and the case was remanded to the Tribunal for fresh disposal of his application after giving opportunity to the parties to adduce evidence. Thereafter, the appellant examined himself and Shivavva in support of his claim for being declared as an occupant of the land. The relevant portions of their statements are extracted below:

(A.) The appellant

"These lands belongs to Shivavva Giriyappa Kamagouda of Kabbur.

I have been cultivating these lands since the last 40 years. They were given to me for cultivating by Shivavva and her husband. I was paying rent.

The Land Tribunal rejected my application. Thereafter, I filed a Writ Petition in the High Court of Karnataka.

The Honble High Court after having my Petition, remanded the case to the Land Tribunal for decision after re-examining the Record of Rights.

I have been cultivating the above mentioned lands for the last 40 years. Therefore my name was entered in Record of Rights. I am cultivating the lands even now.

I have been remitted the Govt. Assessment fees in respect of the above mentioned survey numbers. I have also installed pumpset in the above mentioned lands. I have produced the receipts of payment of assessment fees for the period from 1966 to 1976.

Cross examination by Bhima Satyappa Kamagoud.

I dont want to ask anything."

(B.) Shivavva

"I state the truth, I am the owner of lands bearing No.135/3, 135/4, 135/7, 135/8, 135/9, 135/12, 212/2, 216/1, 219/1 and 223/2. These lands are being cultivated by Bhimappa Channappa Kapali of Kabbur for the last 40 years. He has been paying me the rents.

I have not given this land to Bhimappa Satyappa as a gift. There was a dispute between me and Bhimappa Satyappa. I do not know about the decision in Civil Court. I have nothing more to say.

Cross-Examination by Bhimappa Satyappa Kamagowda.

I have nothing to cross-examine."

9. Respondent No.1 filed a detailed statement to oppose the application. He pointed out that the appellant had approached the Court after dismissal of the suit filed by Shivavva for declaring the gift deed as void and the sole purpose of filing the application was to defeat the right acquired by him by virtue of the gift deed.

10. The Tribunal allowed the application of the appellant by relying upon his statement that he was cultivating the land for forty years and that his name was entered in the record of rights. This is evinced from the following portions of order dated 31.05.1984 passed by the Tribunal:

"Bhimappa Channappa Kapali has stated in his statement that the lands pertaining to this case has been cultivated by him since the last about 40 years. These land were given to him by Giriyappa Kamagouda husband of Shivappa for the purpose of cultivation. His name is also entered in the record of rights. He is paying the Government dues and he has also installed one pump set in the said land.

On perusal of the documents, to show that Bhimappa Satyappa Kamagouda cultivated the said lands, he has no documents in his possession. Apart from the gift deed executed by the land owner gifting the said lands has no other documents. Therefore he has no connection in respect of the rights over the property but to consider that he is a tenant in respect of the said lands under the provisions of Land Reforms Act, he has no documents whatsoever. He has stated that he is not cultivating the lands for the last 20 years.

To show that he is cultivating the lands Bhimappa Channappa Kapali has produced the copies of RTC from 65-66 in which his name is shown in the column cultivator of the RTC. For the above reasons since the applicant was in possession and cultivation of the lands in the abovesaid Survey Number as on 1- 3-1974, the Tribunal has come to the conclusion that he is the tenant in respect of the said lands under the provisions of Karnataka Land Reforms Act. Therefore, the following order is passed.

That since Bhimappa Chennappa Kapali Kabbura is the tenant in respect of Survey Nos.135/3, 2A 24 guntas, 135/4 2A 25 guntas, 135/7 0-15 guntas, 135/8 0-8 guntas, 135/9 1-10 guntas, 135/121A 20 guntas, 212/28A 11 guntas, 219/11 15A 3 guntas, 216/1A 5A 02 guntas, 223/2 14A 31 guntas, he has been declared as occupation in respect of the above lands."

11. Respondent No.1 challenged the order of the Tribunal in Writ Petition No. 10288/1984. During the pendency of the writ petition, the Act was amended and the cases pending before the High Court were transferred to the Land Reforms Appellate Authority. Subsequently, the Land Reforms Appellate Authority was abolished and all the matters were sent back to the High Court. Thereupon, the petition filed by respondent No.1 was registered as Writ Petition No.2215/95.

12. The learned Single Judge allowed the writ petition and set aside the order of the Tribunal by observing that the appellant had failed to produce any tangible evidence to show that he was lawfully cultivating the land.The learned Single Judge also referred to the judgment and decree passed in O.S. No.275/1961 and held that in the face of the concurrent finding recorded by the trial Court and the lower appellate Court, which was approved by the High Court that the gift-deed executed by Shivavva was valid, the Tribunal could not have granted occupancy rights to the appellant by treating him to be a tenant of Shivavva.

13. The legal representatives of the appellant challenged the order of the learned Single Judge in Writ Appeal No.7109/1999 which was dismissed by the Division Bench of the High Court vide judgment dated 16.12.1999.

14. SLP(C)No. 7582/2000 filed against the judgment of the High Court was converted into Civil Appeal No.5/2001 and was disposed of by this Court vide order dated 2.1.2001, the relevant portions of which are extracted below:

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

(i) Whether a tenancy had been created by Shivavva 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 Shivavva, particularly in view of the admitted position that after Gift Deed has been created by Shivavva in the year 1961 she had only a limited interest in the property.

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."

15. In the light of the observations made by this Court, the Division Bench of the High Court first considered the question whether the entries made in the record of rights could be relied upon for the purpose of deciding whether tenancy had been created by Shivavva in favour of the appellant, referred to Sections 128, 129 and 133 of the Karnataka Land Revenue Act, 1964 (for short, the Land Revenue Act) and held:

"Though Section 133 of the Karnataka Land Revenue Act which deals with presumption regarding entries in the records providing that an entry in the record of rights and a certified entry in the register of mutations or in the patta book shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefore, before that presumption could be raised it should be shown that such entries are duly certified entries under Section 129 and thereafter such entries are made in the record of rights. Prior to the making of the entries in the name of the appellant, the entries in the revenue records stood in the name of Gerappa, the husband of Shivavva. After the death of Gerappa, Shivavva has executed a registered gift deed in favour of the first respondent. However, first respondent acquired a right in the land in question by virtue of a registered document. The registering authority under Section 128 of the Land Revenue Act is obliged to inform the concerned revenue authorities about the acquisition of right by first respondent in the land in question. Before a change of entry is made, the revenue authorities were under an obligation to notify the owner of the land in question and only after hearing his objections and after enquiry and passing an order in the prescribed manner they shall certify the entry and thereafter make the necessary entry in the register of mutations. If entries are made in this manner after complying with the provisions of Section 128 and 129, under Section 133 the Court shall presume such entries to be true until the contrary is proved. In the instant case before altering the entries admittedly no notice was given to the first respondent, no enquiry has been held and the proceedings pending between the parties make it clear that the entries made in the revenue records are illegal and these facts and circumstances are sufficient to rebut such presumption. Therefore, having regard to the facts and circumstances of the case and the proved and admitted facts we have no hesitation in holding that no tenancy was created by Shivavva in favour of the appellant and the entries in the record of rights would not prove the said factum of tenancy."

(emphasis supplied)

The Division Bench then referred to Section 4 of the Act and held:

"In so far as the claim as a deemed tenant under Section 4 of the Act, the first and the foremost essential requirement is that appellant should be lawfully cultivating the land belonging to another person if such land is not cultivated personally by the owner. Admittedly, the owner of the land being the first respondent is not personally cultivating the land. But the question is whether the appellant is lawfully cultivating the land. The appellant does not trace his right of cultivation to the owner at all. His specific case is he took the land in question on lease from Smt. Shivavva who admittedly had a limited right to enjoy possession during her lifetime. Whether Shivavva had a right to transfer that right to be in possession during her lifetime to the appellant itself is doubtful in view of the Judgment of the Supreme Court in the case of Kushalchand Swarup Chand Zabak Jain v. Sureshchandra Kanhiyalal Kochar And Another (1995 AIR SCW 1778) where it has been held when a donor divests her title to the property after due execution and registration of the gift deed, she has been divested of her right and interest except her beneficial right to enjoyment of the property during her lifetime and therefore, any right created by her does not confer any right in the person so purported to create and is inconsequential. However, assuming for the argument sake she had a right to alienate that right of possession, in the facts and circumstances of this case, it is not proved that the appellant took the land on lease from her for the purpose of cultivation. On the contrary, the material on record discloses having regard to the fact that Shivavva was a lady and aged and she had no male assistance, the deceased appellant was assisting her in cultivation and management of the lands in question. In other words, the cultivation by the appellant would be cultivation by Shivavva herself and no legal right is created in the deceased appellant."

16. Shri Basava Prabhu S. Patil, Senior Advocate appearing for the legal representatives of the appellant argued that the finding recorded by the Tribunal on the issue of entitlement of the appellant to be declared as an occupant of the land was based on a correct analysis of the evidence produced by the parties and the High Court committed serious error by reversing the same and that too without giving due weightage to the entries contained in the record of rights and the uncontested statement of the appellant that he was cultivating the land for last 40 years and was paying rent to her, which was supported by similar statement made by Shivavva Shri Patil pointed out that the appellants name had been entered in the record of rights because he was in cultivating possession of the land even before the demise of Gireppa Kamagouda and argued that in the absence of any contrary evidence, the learned Single Judge and the Division Bench of the High Court were not justified in interfering with the conclusion recorded by the Tribunal that he was entitled to be declared as an occupant. Shri Patil then submitted that even though the suit filed by Shivavva for declaring gift deed dated 17.01.1961 as nullity was dismissed,her right to lease out the suit land could not be questioned because in terms of the gift deed she continued to be in possession of the land.Learned senior counsel relied upon Section 4 of the Act and argued that the appellant is entitled to be treated as a deemed tenant of Shivavva because he was lawfully cultivating the land owned by her husband and no application was made by Gireppa Kamagouda in terms of proviso to that section.

17. Shri P. Vishwanatha Shetty, Senior Advocate for respondent No.1supported the impugned judgment and argued that the learned Single Judge and the Division Bench of the High Court did not commit any error by discarding the entries made in the record of rights because the same were made in violation of the mandate of Sections 128 and 129 of the Land Revenue Act. Shri Shetty argued that in view of the concurrent finding recorded by the trial Court and the lower appellate Court on the validity of the gift deed dated 17.1.1961 and dismissal of the second appeal filed by Shivavva, the Tribunal could not have relied upon bald statements made by Shivavva and the appellant that he was cultivating the suit land for 40years more so because, the entry made in the record of rights on 14.8.1964shows that the appellants possession was only 7 to 8 years old and no explanation was given for this glaring discrepancy. Shri Shetty then pointed out that in the application made by him for being declared as occupant, the appellant had left the column relating to period of cultivation blank and submitted that this was, by itself, sufficient for rejection of the same. Learned senior counsel also pointed out that in the application form the appellant had disclosed his age as 48 years whereas in the statement made before the Tribunal on 30.4.1984, he mentioned his age to be 70 years and no tangible explanation was offered for this variation in the age.

18. We have considered the respective submissions and carefully perused the record including the application dated 17.8.1974 made by respondent No. 1 for being declared as an occupant of the land in question.

19. Sections 127, 128(1), 129 and 133 of the Land Revenue Act,which have bearing on the decision of this appeal read as under:

"127. Record of Rights.-(1) A Record of Rights shall be prepared in the prescribed manner in respect of every village and such record shall include the following particulars.-

(a) the names of persons who are holders, occupants, owners, mortgagees, landlords or tenants of the land or assignees of the rent or revenue thereof;

(b) the nature and extent of the respective interest of such persons and the conditions or liabilities (if any) attaching thereto;

(c) the rent or revenue (if any) payable by or to any of such persons; and

(d) such other particulars as may be prescribed.

The Record of Rights shall be maintained by such Officers in such areas as may be prescribed and different Officers may be prescribed for different areas.

When the preparation of the Record of Rights referred to in Sub-section (1) is completed in respect of any village, the fact of such completion shall be notified in the Official Gazette and in such manner as may be prescribed.

128. Acquisitions of rights to be reported.-(1) Any person acquiring by succession, survivor ship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, any right as holder, occupant, owner, mortgagee, landlord or tenant of the land or assignee of the rent or revenue thereof, shall report orally or in writing his acquisition of such right to the Prescribed Officer of the village within three months from the date of such acquisition, and the said Officer shall at once give a written acknowledgment of the receipt of the report to the person making it:

Provided that where the person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the Prescribed Officer:

Provided further that any person acquiring a right by virtue of a registered document shall be exempted from the obligation to report to the Prescribed Officer.

Provided also that any person reporting under this sub-section the acquisition by him of a right in partition in respect of the land shall annex with the report a sketch showing the metes and bounds and other prescribed particulars of such land and such person shall get the sketch prepared by a Licensed Surveyor.

Explanation I.-The rights mentioned above include a mortgage without possession but do not include an easement or a charge not amounting to a mortgage of the kind specified in Section 100of the Transfer of Property Act, 1882 (Central Act 4 of 1882).

Explanation II.- A person in whose favour a mortgage is discharged or extinguished or a lease determined acquires a right within the meaning of this section.

129. Registration of Mutations and Register of Disputed Cases.-

(1) The Prescribed Officer shall enter in the Register of Mutations every report made to him under sub-section (1) of Section 128 or received by him under sub-section (2) or Sub-section (4) of the said section.

(2) Whenever a Prescribed Officer makes an entry in the Register of Mutations, he shall at the same time post up a complete copy of the entry in a conspicuous place in the chavadi and shall given written intimation to all persons appearing from the Record of Rights or Register of Mutations to be interested in the mutation, and to any other person whom he has reason to believe to be interested therein.

(3) Should any objection to any entry made under sub-section (1) in the Register of Mutations be made either orally or in writing to the Prescribed Officer, it shall be the duty of the Prescribed Officer to enter the particulars of the objection in a Register of Disputed Cases.

(4) The objections entered in the Register of Disputed Cases and such other objections as may be made during the enquiry shall be enquired into and disposed of by such Officer and in such manner as may be prescribed. Orders disposing of such objections shall be recorded in the Register of Mutations by such Officer.

(5) The Officer holding an enquiry under sub-section (4) shall have all the powers under Chapter III, that a Revenue Officer has in making a formal or summary enquiry under this Act.

(6) Entries in the Register of Mutations shall be tested and if found correct or after correction, as the case may be, shall be certified by such Officer as may be prescribed.

(7) The transfer of entries from the Registers of Mutations to the Record of Rights shall be effected in the prescribed manner, provided that an entry in the Register of Mutations shall not be transferred to the Record of Rights until such entry has been duly certified.

133. Presumption regarding entries in the records.-An entry in the Record of Rights and a certified entry in the Register of Mutations or in a Patta Book shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor."

20. Section 127(1) of the Land Revenue Act mandates the preparation of the record of rights in respect of every village and also specifies the particulars required to be incorporated therein. Section 128(1) lays down that the person acquiring any right in the land should inform the Prescribed Officer about such acquisition. Section 129(1) lays down that the Prescribed Officer shall enter in the register of mutations, every report made to him under Section 128(1) or received by him under Section128(2) or (4). Section 129(2) casts a duty on the Prescribed Officer to post a complete copy of the entry at a conspicuous place in chavadi and give written intimation to all persons interested in the mutation. If any objection is filed, then the same is required to be entered in the Register of Disputed Cases. Sections 129(4) and (5) provide for disposal of the objections. After completion of the aforesaid exercise, entries in the register of mutations are required to be tested and if found correct, the same are to be certified by the concerned officer. Section 133 incorporates presumption about truthfulness of an entry made in the record of rights and a certified entry in the register of mutations or in a patta book until the contrary is proved or a new entry is lawfully made. The benefit of this provision can be availed only if it is shown that the entry has been made in the record of rights in accordance with the relevant statutory provisions. In other words, if the entry has not been made by following the prescribed procedure, the presumption contained in Section133 cannot be invoked by the beneficiary of such entry.

21. In this case, the appellant had relied upon entry dated14.8.1964 made in the record of rights on the basis of vardhi allegedly given by Shivavva. The entry made in the record of rights shows that tenancy had been created in favour of the appellant on crop sharing basis and he was shown to be cultivating the land for 7 to 8 years. However, the documents produced before the Tribunal, the High Court and this Court do not show that before entering the appellants name in the record of rights the Competent Authority had followed the procedure prescribed under Section128 read with Section 129 of the Land Revenue Act. Therefore, the appellant cannot take shelter of Section 133 of the Land Revenue Act and contend that the entry contained in the record of rights is conclusive.

22. The issue deserves to be considered from another angle. It is not in dispute that after the death of her husband, Shivavva had executed registered gift deed dated 17.1.1961 in favour of respondent No.1 and O.S. No. 275/1961 filed by her for cancellation of the gift deed as nullity was dismissed by the trial Court on 10.10.1963 and the judgment and decree passed by the trial Court was confirmed by the lower appellate Court and the High Court. Both, Shivavva and the appellant were very much aware of the result of the suit but this fact is neither shown to have been brought to the notice of the Competent Authority nor any notice was given to respondent No.1 in terms of Section 129(2) of the Land Revenue Act so as to enable him to file objections. Therefore, the conclusion recorded by the High Court that the entry made in the record of rights could not have been relied upon by the Tribunal for entertaining the appellants claim for being declared as an occupant for grant of occupancy rights cannot be termed as erroneous.

23. In addition to what the High Court has observed about the entry made in the record of rights on 14.8.1964, it will be apposite to note that the said entry inherently lacks credibility because no evidence was produced by the appellant to show that Girappa Kamagouda inducted him as tenant or permitted him to cultivate the land. The appellant also failed to explain serious discrepancies in the record of rights and the statement made by him and Shivavaa before the Tribunal on the issues of the formers age and the period of cultivation. In the absence of appropriate explanation, the Division Bench of the High Court was fully justified in refusing to rely upon the record of rights. We also agree with the Division Bench of the High Court that the appellant cannot invoke Section 4of the Act for the purpose of claiming to be a deemed tenant. Once the competent Court had granted a declaration that the gift deed executed by Shivavaa was not vitiated by fraud or misrepresentation, the appellant cannot be said to be lawfully cultivating the land. Indeed, he had not produced any evidence to show that respondent No.1 had allowed him to cultivate the land.

24. In the result, the appeal is dismissed.

25. However, the parties are left to bear their own cost.