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

The Amended Karnataka Land Reforms Act, 1961 (the ‘Act ofcame into force w.e.f. 01.03.1974. By virtue of amended Sections 44 and 45 thereof, all the tenanted lands vested with the Government and all the tenants were entitled to be registered as. Every person entitled to be registered as an occupant under Section 45 was required to make an application in that behalf before the Tribunal within the stipulated time. Such an application was required to be made in Form 7 appended to the Karnataka Land Reforms Rules, 1974.2.2. Shri Bona Menezes, predecessor of the appellant, made an application in the prescribed Form 7, claiming occupancy rights over various parcels of land while alleging that he was cultivating the land in question for about 40 years on payment of 50 Muras of rice per annum to the landlord; and he was also makingpayment of land revenue and levy. The landlord (respondent herein) appeared in response to the notice issued on the application so made by Shri Bona Menezes and specifically raised objection in respect of the land in Survey No. 119/2A1, which is the subject matter of dispute in the present appeal. The landlord also raised objection in relation to the land comprising Survey No. 143/2B, Survey No. 144/2 and Survey No. 144/6 while stating no objection in granting occupancy rights to the applicant on other parcels of land. The main plank of the case of the landlord had been that the said parcels of land comprising Survery Nos. 119/2A1, 143/2B, 144/2 and 144/3 were Punja lands, which were not cultivable and were not leased to the applicant.2.3. After taking necessary evidence and after spot inspection on 06.03.1981, the Land Tribunal came to the conclusion that so far as the land comprising Survey No. 119/2A1 was concerned, the applicant was using the same for agricultural purpose and in fact, without this land, he cannot cultivate the other parcels of land. The Tribunal, therefore, rejected the objections of landlord in regard to this land in Survey No. 119/2A. However, as regards other parcels of land for which, the landlord had raised objections namely, those comprising Survey No. 143/2B, 144/2 and 144/3, the Tribunal found that they were situated at a distance away from the agricultural land of the applicant and hence, rejected his claim in that regard. Accordingly, the Tribunal, by its order dated 18.06.1981, registered the applicant as an occupant in relation to the other parcels of land that were not objected to as also in relation to land comprising Survey No. 119/2A1 to the extent of 3.07 acres. The Tribunal concluded the matter aslands leased have vested with the Govt as on 1.3.74 as per amended Land Reforms Act. Hence applicant is registered as occupant for the lands mentionedit is that the applicant had claimed occupancy rights over the entire Survey No. 119/2A admeasuring 4.71 acres but he was granted occupancy rights only to the extent of 3.07 acres therein.2.4. Aggrieved by the aforesaid order dated 18.06.1981, the respondent-landlord preferred a writ petition in the High Court, being W.P.No. 19746 of 1981, essentially questioning the grant of rights in relation to the said 3.07 acres of Survey No. 119/2A1. The High Court allowed the writ petition and remanded the matter for fresh inquiry as regards the said land of Survey No. 119/2A1.2.5. In the detailed inquiry undertaken pursuant to the order of remand, the Land Tribunal recorded the statement of parties while extending opportunity of cross- examination to the respective opponents and also took on record the documentary evidence adduced by the parties. After thorough examination of the material on record, the Tribunal again found justified the claim of the applicant as regards the said 3.07 acres of land in Survey No. 119/2A1 and allowed his claim, inter alia, with the following findings and observations in its impugned order datedAggrieved by the aforesaid order dated 28.01.1999, the landlord preferred a writ petition (W.P.No. 11344 of 1999) before the High Court. The Learned Single Judge of High Court proceeded to allow the said writ petition by the impugned order dated 17.11.2006, essentially on the ground that Punja land, not brought under cultivation, is not to be classified as agricultural land while relying upon a Division Bench decision of the High Court in the case of Subhakar and Ors. v. The Land Tribunal, Karkala Taluk, Karkala and Ors.: (1994) KLJ 524. The learned Single Judge also observed that, even otherwise, there was no material on record to establish lawful tenancy, much less landlord-tenant relationship over the land in question. According to the learned Single Judge, the Tribunal was swayed by the fact that the applicant was in possession of the land at the time of spot inspection, but mere possession, by itself, was not sufficient to establish lawful tenancy or landlord-tenant relationship. The Learned Single Judge also observed that the payment of land revenue was of no relevance and further that the Land Tribunal had ignored the relevant material on record while proceeding on irrelevant material and under misconception of law. The Learned Single Judge allowed the writ petition while observing, inter alia, asEven otherwise, an examination of the order impugned discloses that there is no material on record to establish a lawful tenancy, much less a landlord-tenant relationship over the Punja land in question. The Tribunal was swayed by what it noticed at the time of spot inspection that the applicant was in possession of the land. Mere possession by itself and nothing more cannot establish lawful tenancy or landlord- tenant relationship. So also, the receipts for having paid the land revenue in respect of the land in question is not substantial legal evidence of a fact of existence of a lawful tenancy. Payment of tax has no relevancy to the claim of tenancy. The Land Tribunal, without considering relevant material on record and eschewing irrelevant material, by a misconception of law and fact, conferred occupancy rights in favour of the applicant over land which was not agricultural. In that view of the matter too, the order impugned is unsustainable.In the result, the Writ Petition is allowed. The order dated 28.01.1999 AnnexureAggrieved by the order aforesaid, the applicant-appellant preferred an intra- court appeal but the same was dismissed by the Division Bench of High Court while observing asThe only point that would arise for consideration is whether the land being a punja land, which is an undisputed fact, was brought under cultivation and was it in fact treated as an agricultural land as on the appointed date i.e. 1.3.1974. The tribunal, no doubt, based on the spot inspection made somewhere in the year 1981 comes to a conclusion that it was brought under agricultural operations, on the other hand, the records reveal that even as on the appointed dated, Smt. Devaki Amma, the landlady was in possession and enjoyment of the Sy. No. 119/2A-1. The contention of the landlady is also to the effect that except this land all other lands were the subject matter of Chalageni Chit.3. The Learned Single Judge by referring to a Division Bench Judgment of this Court in the case of SUBHAKAR AND OTHERS VS. THE LAND TRIBUNAL reported in 1999(4) KLJTR 524, held that unless there is positive evidence to show that as on 1.3.1974, though the land being described as Punja Land was brought under cultivation, there cannot be grant of any occupancy rights in respect of such lands. The said observation of the learned Single Judge is based on record and especially the fact of tribunal placing reliance on the spot inspection made in the year 1981, almost seven years after the appointed date. We do not find any good ground to interfere with the said order of the learned Single

Court's reasoning:
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.