Case: MONTHI MENEZES(D) BY LR Vs. DEVAKI AMMA (D) BY LR

the extent of 3.07 acres after finding that such parcel of land was being used for agricultural purposes and without this land, the applicant cannot cultivate the other parcels of land. After the matter was remanded by the High Court for reconsideration, the Tribunal undertook fresh inquiry as regards the said land of Survey No. 119/2A1 and again accepted the prayer of the applicant with the clear finding that the applicant was in possession of 3.07 acres of land in Survey No. 119/2A1 as on 01.03.1974 and prior to it. The Tribunal also held that this land was given to the applicant for better cultivation and development of other parcels of land with him and therefore, non-inclusion of this parcel of land in the lease chit was of no adverse effect on the claim of the applicant. As regards such categorical findings of the Tribunal, the learned Single Judge proceeded to observe that mere possession or mere payment of land revenue was of no effect because there was no material on record to establish a lawful tenancy and landlord-tenant relationship.7. With respect, we are unable to find if the learned Single Judge at all adverted to the reasons that had prevailed with the Tribunal that the land in question was allowed to the tenant for better cultivation of other parcels of land. The learned Single Judge also observed, with reference to the Division Bench decision in Subhakars case (supra) that unless Punja land was shown to have been brought under cultivation, it would not be recorded as agricultural land. However, in the said decision, Division Bench of Karnataka High Court has also observed that the question as to whether Punja Land is cultivable or not is a pure question of fact. In the said decision, grant of occupancy rights was denied on the given set of facts, where only thatched grass had grown naturally on the land in question that was shown to be Punja land and it was also found that there was a built house surrounding the land in question. The said decision in Subhakars case (supra) could only be read in the context of the facts therein and the relevant factual aspects of the present case cannot be ignored.8. While dealing with the intra-court appeal against the order so passed by the learned Single Judge, the Division Bench, in paragraph 2 of its judgment has even gone to the extent of observing that, as per the record, the landlord was in possession of the land in question as on the appointed date. In fact, such had not been the finding even by the learned Single Judge, who proceeded to observe that mere possession by itself cannot establish lawful tenancy. The findings of the Tribunal, on the contrary, had been that the applicant Shri Bona Menezes was in possession of the land in question as on 01.03.1974 and even prior to it.9. The significant aspects of the matter, as taken into consideration by the Tribunal, had been that there was a reference in the lease chit about mango trees, cashew, tamarind and the lessee was to enjoy the fruits of the allied land also. The Tribunal also observed that for the purpose of cultivating other land, the applicant had to depend upon the land in question and hence, the said land was also to be considered as included in the lease chit. The Tribunal also found that the original Survey No. 119/2A was divided by stone, making it No. 119/2A1 and No. 119/2A2; and the first one, being No. 119/2A1 admeasuring 3.07 acres, was in possession of the applicant whereas the other one, being No. 119/2A2 admeasuring 1.64 acres, was in possession of the landlord.10. Hereinabove, we have only indicated the relevant aspects emanating from the findings of the Land Tribunal and it is but apparent that the High Court, while dealing with the writ petition as also the writ appeal has not adverted to such categorical findings of the Tribunal.10.1. Apart from the above, it is also apparent that the High Court did not examine the definition of "land" as set out in Section 2(18) of the Act of 1961 to find if the land in question answers to the description therein. The wide-ranging meaning assigned to the expression "land" for the purpose of the Act of 1961 makes it clear that the expression refers not only to the land which is actually used for agricultural purposes but even to the land which is used or is capable of being used for agricultural purposes or even the purposes subservient thereto. On the facts and in the circumstances of this case, the said definition deserves due consideration while dealing with the challenge to the order made by the Tribunal.11. In view of the aforesaid, where we find that the High Court has not adverted to all the facts of the case as also to the law applicable, the proper course in this matter would be to remand the matter and to request the High Court to decide the writ petition afresh on merits and in accordance with law.12. It is also noticed that while issuing notice in this matter on 18.07.2008, this Court ordered status quo in relation to possession of subject of dispute to be maintained. While granting leave on 08.05.2009, the said interim order was confirmed until the disposal of this appeal. In the totality of circumstances of the case, it is also appropriate that such interim order remains in operation until final disposal of the writ petition by the High Court.13. In the interest of justice, it is also made clear that we have not expressed any opinion on the merits of the controversy and the observations herein are relevant only for the purpose of our reasons for remanding the matter. Hence, the matter involved in the writ petition remains open for decision afresh by the High Court on merits, without being influenced by any observation made in the orders impugned or in this order.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. We have taken note of the relevant part of the observations made by the Land Tribunal as also by the High Court in this matter. In a comprehension of the entire matter, we are constrained to observe that while disapproving the order passed by the Land Tribunal, the High Court appears to have proceeded either on irrelevant considerations or while ignoring the relevant aspects of the matter. It is for this reason we feel it imperative that the matter be restored for reconsideration by the High Court.Hereinabove, we have only indicated the relevant aspects emanating from the findings of the Land Tribunal and it is but apparent that the High Court, while dealing with the writ petition as also the writ appeal has not adverted to such categorical findings of the Tribunal.10.1. Apart from the above, it is also apparent that the High Court did not examine the definition of "land" as set out in Section 2(18) of the Act of 1961 to find if the land in question answers to the description therein. The wide-ranging meaning assigned to the expression "land" for the purpose of the Act of 1961 makes it clear that the expression refers not only to the land which is actually used for agricultural purposes but even to the land which is used or is capable of being used for agricultural purposes or even the purposes subservient thereto. On the facts and in the circumstances of this case, the said definition deserves due consideration while dealing with the challenge to the order made by the Tribunal.11. In view of the aforesaid, where we find that the High Court has not adverted to all the facts of the case as also to the law applicable, the proper course in this matter would be to remand the matter and to request the High Court to decide the writ petition afresh on merits and in accordance with law.12. It is also noticed that while issuing notice in this matter on 18.07.2008, this Court ordered status quo in relation to possession of subject of dispute to be maintained. While granting leave on 08.05.2009, the said interim order was confirmed until the disposal of this appeal. In the totality of circumstances of the case, it is also appropriate that such interim order remains in operation until final disposal of the writ petition by the High Court.13. In the interest of justice, it is also made clear that we have not expressed any opinion on the merits of the controversy and the observations herein are relevant only for the purpose of our reasons for remanding the matter. Hence, the matter involved in the writ petition remains open for decision afresh by the High Court on merits, without being influenced by any observation made in the orders impugned or in this order.