Karnataka High Court
Narayana Devadiga By L.Rs vs Sharada And Ors. on 8 October, 2001
Equivalent citations: 2002(1)KARLJ581, 2002 AIR - KANT. H. C. R. 1489, 2002 AIHC 2355
Author: K.R. Prasad Rao
Bench: K.R. Prasad Rao
ORDER
The Court
1. This revision petition is filed against the order dated 21-3-1989 passed by the Land Reforms Appellate Authority, Mangalore, in Appeal No. LRA.T. 152/88 Man, allowing the said appeal and setting aside the order passed by the Land Tribunal, Mangalore, dated 26-4-1988 in L.R.T. No. 3071/78-79 and rejecting the claim of 1st respondent for grant of occupancy rights in respect of the land measuring 23 cents in Sy. No. 117/1A of Jeppinamogaru Village, Mangalore Taluk, Dakshina Kannada District.
2. Respondent 1 filed Form 7 under Section 48-A of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as "the Act") before the Land Tribunal claiming occupancy rights in respect of land measuring 23 cents in Sy. No. 117/1A of Jeppinamogaru Village, Mangalore Taluk, Dakshina Kannada District. It is the case of the original petitioner-K. Narayana Devadiga that the said land has been mortgaged in his favour on 28-12-1945 under a registered mortgage deed by the then mulagenidars, Augustin Pinto and his wife Brigitas Menazes for a consideration of Rs. 300/- and ever since that date, the petitioner has been in possession and cultivation of the above said land by raising fruit bearing trees and vegetables. .Subsequently, the mulagenidars had obtained permission from the owner i.e.. Father Muller's Charitable Temple, Kankanady, for the outright sale of mulageni rights in favour of the petitioner and accordingly permission was accorded on 7-6-1948. Thereafter the mulagenidars sold their right and interest to Smt. Maire Hengsu and Kochappa Devadiga for a consideration of Rs. 600/- under a registered document dated 11-6-1948 subject to the mortgage under the deed dated 28-12-1945 in favour of the petitioner. However, the petitioner continued with his possession of the property as "Chalageni Tenant" on an annual geni of Rs. 12/- as per the oral agreement between him and Smt. Maire Hengsu and Sri Kochappa Devadiga. The petitioner dug an irrigation well and started raising coconut trees, banana plants and other useful fruit bearing trees and growing different kinds of vegetables apart from using a portion of the land for dairy farming and poultry farming.
3. The Land Tribunal, after holding an enquiry, granted occupancy rights in favour of the petitioner in respect of the above said land. The said order has been challenged by 1st and 2nd respondents before this Court in Writ Petition No. 19587 of 1979 and the said writ petition came to be allowed by this Court setting aside the order of the Land Tribunal and the matter was remitted to the Land Tribunal for fresh disposal. After holding a fresh enquiry, the Land Tribunal granted occupancy rights in favour of the petitioner in respect of the above land. The said order has been set aside by this Court in Writ Petition No. 9722 of 1982 and the matter was again remanded to the Land Tribunal for holding a fresh enquiry by an order dated 11-12-1984. Thereafter, the Land Tribunal again by majority opinion granted occupancy rights in favour of the petitioner by an order dated 26-4-1988 in Case No. LRT. 3071/78-79. The said order has been challenged by respondents 1 and 2 before the Land Reforms Appellate Authority in Appeal No. LRA.T. 152/88. The Appellate Authority, after giving opportunity to both parties to lead their evidence and on reappreciation of the entire evidence placed on record, passed the impugned order dated 21-3-1989 allowing the appeal and setting aside the order of the Land Tribunal and rejecting Form 7 filed by the petitioner. The petitioner, therefore, filed the present revision petition.
4. I have heard the arguments advanced by the learned Counsel appearing on both sides and I have carefully scrutinised the entire oral and documentary evidence placed on record.
5. The learned Counsel for the petitioner has vehemently contended that the dominant purpose of the lease of the land in dispute under the document dated 1-11-1935 in favour of Subba Poojary is for agricultural purposes, as could be seen from the recitals of the said document and also from the circumstance that the annual rent was fixed in respect of the land of 23 cents. It is further pointed out by him that the petitioner, who came in possession of the land in dispute under a registered mortgage deed dated 28-12-1945 has been making use of the said land for purpose of horticulture and running a poultry farming and till the notified date he was making use of the land for agriculture purpose. It is, therefore, contended by him that from the above use of the land in dispute by the petitioner continuously from 1945 till the notified date as a tenant, having acquired mulageni rights, it is to he concluded that the land in dispute was a tenanted land and that, the petitioner was a tenant by the notified date, it is his further contention that respondents 1 and 2 have admitted the fact that he continued as a tenant in respect of the land in dispute till the notified date though they are disputing that the dominant purpose of the lease is not for agricultural purposes. According to him, the land in dispute falls within the definition of the "land" as defined under Section 2(A)(18) of the Act as it was being used for horticulture, for running poultry etc.,, and the petitioner became entitled to grant of occupancy rights and the Land Tribunal has rightly granted occupancy rights in his favour on all the three occasions when the matter came to be decided afresh and the Appellate Authority has misread and misinterpreted the entire oral and documentary evidence placed on record and came to an erroneous conclusion that the purpose of the lease is not for agricultural purposes and, therefore, the land in dispute was not an agricultural land and the Land Tribunal had no jurisdiction to grant occupancy rights in respect of the said land in favour of the petitioner.
6. In reply to the above submissions, the learned Counsel for respondents 1 and 2 submitted that the recitals in the lease deed 1-11-1935 executed in favour of Subba Poojary, which is the earliest document, by the owner of the land clearly go to show that the land in dispute was a "punja land" and that it was leased out only for the purpose of construction of a residential house, and for possession and enjoyment of the same. It is also pointed out by him that there are no recitals in the said document to indicate that the said land was leased out for any agricultural purposes. It is further contended by him that the petitioner who has taken a mortgage mulageni rights from mulagenidars himself has taken the rental agreement from mulagenidars on the same date of mortgage which is produced in the case i.e., 28-12-1945 fixing the monthly rent of the house as Rs. 3/- and the period of lease as 11 months. According to him, the said circumstance clearly indicates that the purpose of lease is only for non-agriculture and what has been leased is only the residential premises. It is further pointed out by him that even at the time of the original lease of the above punja land in the year 1935, measuring 5 guntas, 5 coconut trees were in existence and this fact is clearly mentioned in the lease deed dated 1-11-1935. He has relied upon number of earlier decisions of this Court in support of his contention that mere existence of some fruit bearing trees in the compound of the land where a residential house is situated does not lead to an inference that the purpose of the lease of the land is for agricultural use. It is also his submission that respondents 1 and 2, who are the owners of the land in dispute are not parties to the other documents which came into existence between mulagenidars and the petitioner subsequent to 1-11-1935 and the fact that the petitioner has raised some banana plants and planted mango saplings in a portion of the land in dispute, does not convert the purpose of lease into one for "agricultural purpose".
7. I shall now consider the merits of the rival contentions urged by both sides with reference to the oral and documentary evidence placed on record.
8. The recitals in the earliest lease deed dated 1-11-1935 executed in favour of Subba Poojary are to the effect that the land in dispute was leased out in his favour for the purpose of constructing a house, for possession and enjoyment of the said land in any manner he likes. Since the land was a vacant land at that time, the annual rent was fixed at Rs. 11 and 8 annas. It is also recited in this document that if the tenant fails to put up construction of a house in the land, possession of the land must be given back to the owners. There are no specific recitals in this document to the effect that the land can be used for agricultural purposes or for horticulture purposes or for running a poultry farm. It is no doubt contended by the learned Counsel for the petitioner that the very fact that the annual rent is fixed in respect of the lease of this land and the tenant is permitted to make use of the land in any manner he likes, it must be presumed that the purpose of the lease is not solely for non-agricultural purposes. But from such general recitals it is not possible to draw an inference that the purpose of lease is for agricultural purpose. On the other hand, the condition imposed on the tenant in this document that he has to put up a construction on this land and if he fails to do so, he must deliver back possession of the land to the owner clearly indicates that the dominant purpose of the lease of the land is to make use of the same only for residential purpose. The fact that the annual rent has been fixed in respect of the vacant land under this document does not lead to an inference that the lease is one for agricultural purposes, when admittedly the land was described as "punja land" in the said lease deed. Apart from this fact, after the petitioner came in possession of the land in dispute as a mortgagee under the registered mortgage deed dated 28-12-1945, he has given back the said land on lease to the mulageni holder on a monthly rent of Rs. 3/- under the lease deed dated 28-12-1945 taken by him and the period of lease is found to be for 11 months. Thus when the petitioner came into picture, he treated the land as non-agricultural and the purpose for which the land was leased is for residential use and this intention of him is made clear from the recitals in the rent bond dated 28-12-1945. It is further pointed out by the learned Counsel for respondents 1 and 2 that in Form 7 filed by the petitioner, he has given his occupation as a "salesman" and even in the evidence given by him before the Land Tribunal he described himself as a salesman. This circumstance also shows that the petitioner was not an agriculturist at the time when he filed Form 7. The learned Counsel for respondents 1 and 2 has contended that if the dominant purpose of the lease of the land is found to be for non-agricultural purposes, the land cannot be construed as an agricultural land merely because some coconut and other fruit bearing trees are existing in the compound put up to the residential house. In support of this contention, he relied upon an earlier Division Bench decision of this Court in Vanajakshi v. Land Tribunal, Udupi and Anr., wherein it was held that-
"While determining whether the premises should be regarded as agricultural or non-agricultural, one must look to the dominant characteristics of such premises. The mere fact that there are some plants and trees in the compound of a house, will not render the premises an agricultural one. Likewise, the mere fact that in an agricultural land there is a house used as a farmhouse will not render such premises non-agricultural. No one factor is decisive and the cumulative effect of all factors should be considered.
Where the premises were situate within municipal limits, were assessed to municipal tax, the tenancy was monthly and not annual, that the rent was monthly and not annual and the tenant not an agriculturist by profession, held, the conclusion that the premises are non-agricultural cannot be said to be erroneous".
He also relied upon another earlier decision of this Court in Bhamy Panduranga Shenoy v. B.H. Ravindra and Ors., wherein it was held that.-
"The Act does not apply to all kinds of lands in the State and to all categories of tenants. If the relationship of landlord and tenant does not rest on agrarian relations, the tenant who is in possession of the land, even if the land is an agricultural land within the meaning of the Act, cannot avail himself of any benefit under the Act. The governing factor to bring the case within the fold of the Act will be the relationship of landlord and tenant based on agrarian relations. The tenancy must relate to agriculture in order to bring the relationship of landlord and tenant within the ambit of agrarian relations.
In the district of Dakshina Kannada there was no classification of lands as agricultural and non-agricultural. When a lease is evidenced by a written document in which the object or purpose of the lease is stated, then the purpose of the lease as stated in the lease deed concludes the question whether the land demised is agricultural land and the lessee a tenant within the meaning of the Act, notwithstanding the fact that the land demised is a 'nanja' or 'bagayat' land".
In another earlier decision of this Court in C.V. Gouramma v. Land Tribunal, Bantwal and Ors., it was held that.-
"It is for the claimants to prove to the satisfaction of the Land Tribunal that the lands over which they claim occupancy right are lands within the meaning of Section 2(A)(18) of the Act. Where bits of land were let out on "Stalabadige" to each of the respondents, which were punja lands unfit for cultivation, the plots being situate on the side of two roads and were hilly and barred with no facility for water, fit only for house sites and the respondents had constructco1 buildings in the respective plots and also raised certain fruit bearing trees and the respondents, were not following agriculture as their profession, held, that the lands in question did not fall within the category of the 'land' as defined in Section 2(A)(18) of the Act. The mere existence of a few fruit bearing trees in the compound of houses would not make the plots in question 'lands' on that ground alone. Therefore, the Land Tribunal had no jurisdiction to deal with them in the matter of granting occupancy right".
In the instant case, the land in dispute is described as "punja land" in the earliest lease deed of 1935. Now the said land is situated within the City Corporation limits of Mangalore Town, The dominant purpose for which the land was leased is clearly indicated in the said lease deed that it was for the purpose of construction of a house and for possession and enjoyment of the same. Even the subsequent rental agreement dated 28-12-1945 taken by the petitioner as a mortgagee of the mulageni rights from the mulagenidars also indicates that the purpose of the said lease is for residential use of the house constructed thereon on a monthly rent fixed for a period of 11 months. The petitioner described himself as a 'salesman' in Form 7 filed by him and even in the evidence given by him before the Land Tribunal, he has given the same occupation of him. The land in dispute is described as hillock area in the Commissioner's report. Even at the time of lease of the land by the original owner in the year 1935, five coconut trees were in existence in that land and after the petitioner came in possession of the said land and the house constructed thereon, he has grown some more fruit bearing trees, two Jackfruit trees and planted some mango saplings as narrated by him in his evidence before the Land Tribunal. In view of the above referred earlier rulings of this Court mere existence of trees in the compound of house constructed on punja land does not convert the land into an agricultural land when the dominant purpose of the lease is found to be for non-agricultural use and when the petitioner was not found to be an agriculturist by the notified date. It is no doubt pointed out by the learned Counsel for the petitioner that in the mortgage deed dated 28-12-1945 executed in his favour by the mulagenidars it is recited that he is entitled to enjoy the produce from the land. Hut as admittedly, there were 5 coconut trees even by that time, the said recitals must have been mentioned in that document. So, from the said circumstance, it cannot be presumed that the purpose of the lease is for agricultural use of the land. When respondents 1 and 2 arc not parties to the said document, they are not bound by the recitals in that document. The learned Counsel for the petitioner has no doubt pointed out that the local inspection report of the Land Tribunal dated 16-1-1986 available on record disclosed the existence of a well and poultry farm, five coconut trees of 40-50 years old, some mango saplings, about 65 banana plants in the land in dispute and that even some vegetables were being grown in a portion of that land. But, as rightly pointed out by the learned Counsel for respondents 1 and 2 that the subsequent use of the some portion of the land as a poultry farm, for growing vegetables and for raising some fruit bearing trees after the notified date cannot be taken into consideration for the purpose of ascertaining whether the lease of the said land was for agricultural purposes by the notified date. Since the crux of the matter in this case is whether the lease of the land in dispute was for agricultural or for non-agricultural purposes and since it is found that the dominant purpose of the lease was only for non-agricultural purposes, in my view, the Appellate Authority was justified in holding that the land in dispute was not an agricultural land by the notified date and that the petitioner was not the tenant of the land in dispute for agricultural use of land by the notified date.
9. Thus, on a careful scrutiny of the evidence placed on record, I am unable to hold that the impugned order passed by the Appellate Authority suffers from any illegality or that the Appellate Authority has erred in deciding the question of law involved in the case. In a latest decision of the Supreme Court in Krishtappa Yellappa Pujar v. Ram Samsthan, Beladhadi, it was held that "While exercising revisional jurisdiction of the High Court, interference is permissible only on question of law or irregularity in procedure. In the instant ease, since it is found that the impugned order passed by the Appellate Authority does not suffer from any illegality or procedural irregularity, I find that this Court is not entitled to interfere with the said order.
10. This revision petition therefore, fails and is dismissed. No order as to costs.