Karnataka High Court
James D'Souza vs The State Of Karnataka on 13 March, 2009
Bench: V.G.Sabhahit, S.N.Satyanarayana
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This Writ fisgpeai csming an fer lrzsaring gmii regersieé
for judgmmfi Ehig day? SABHAHE'? J1, <i.<*:3ii¥:are<i 1:311': foiigwirigr
4_ quanshfzdg ofthc order passed by Land Tribunal,
26.9.2003 wherein the: application filed by
vdiifiiimsentcd by the petitioners in form No.7
' _ sedking fpf edfiferment of occupancy right under Section 48»-
.. cf. éfiarnataka Land Reforms Act, 196}. (hcreinaficr
V d 'the Act') in respect of Sy.No.7'O/4 measuring 0.19
V; .(:e:£1ts, sy.Ne.7o/5 measuring 0.03 cents, Sy.No.70/9
xaaasugring 0.08 cents situated in Kankanady village,
.. 3 ..
JU%§K$§"'!'
This appeal is filed by the petitioners in Writ petition
N'o.2185S/2004 being aggrieved by the judgment-'f .'
1t=:a.rned Singie Judge of this court dated 29.9.2C¥C:4
the learned Single: Judge"~ "interfere with the
cider dated 26._9--.20O3A""pas;§.cd" Tribunal,
Mangajlorc
2., 7Fhfi$esvée;i'ij3i (Sf '-thcvfiéase leading upto this
appeal as
The filed W.P.No.21855/2004
OJ
1
-CS3
1
whai was leased was the house COI1StI"t1Cf.f:(_3;":§I1.: "
said survey number and there Wétrzit ifivcéiv Cpéoilut' *1i1v'£:_es:, f
O.S.No.64/73 had been filed agajnst th§':'
fer his eviction. The 'W133 is pentiing in
R.A.1174/8? on ihg i'11:c.=.-"V-;..§'. the said
contenfion of the land
ctfiiiivating not taken in earlier
orders " gj.é.VNe.54/73, 0.3.129/73,
0.8. 131 ";31:V:d' 'yroceeding before the Land
Tfibuxmé cL)1'r:1{£:'43:":.-;..Tsv%."r'r:':xi*t.:" peissfii and rent receipt was produced
"f<'3*1T "£5316 lflyévféixév the 'I'ribm:1a1 only after the matter
court ir1'W.P.Nc3.29366/96 by order
the rent mceipt: was only for one yam' and
' no I'€C63§Z;}11Ai.'$ produces? to Show that the land has been {eased
":}r§:£$.::>:;fi"'f'a;«.3.'?4 and What was leased was the house: and merely
' ..__ be(:a11s{: there were some coconut trees agrazian anci poultry
' farming as contencieé by the appiicants, the same had
not been substantiated and there: was no agrarian
\/,3;
reiatienship between the applicant f1fi€i"the s.§:,1d'-, u
what was Ieaseé in favour of the 1
house and it was only a msifiefifial lease' "€:£en""1V'a'x3":ant "
purpose of the lease has to bee.1eueiRed" 'afid..Ait,s?as alse
contended that in the sgsetu 'feund that there
were only five coeex3.pt had been put
by the appfieegies the date of spot
iespecticv:;1__Viv3.:1 the order passed
by the application for eonferment of
occupaney and did not call for
interference is 'the"§i7xif' petition. The learned Single Judge
°gfieV eeiisidezjng contention of the learned counsel
a§§e\a'n'Ae'~e{g-fer ut'.i;Ve:.}paJ:'ties and scrutinising the material on
recess held there was no agxexian relationship between
'the apiéfiesnt and the third respondent~the owner. What was
the house and the appiicent did not euitivste the V' lexid as a tenant, dominant purpose of the lease was the " house am} the documents produced was not helpftl}. in proving cultivation of the land on 1.3.74 as {he lease deed L} ..g..
punja and bagayat as observed in Bhamy _ Shenoyfls case ané merely on the basis of the C.1'l:.'fXj'«l'A +- mcoxd of rights, Triblmal was not 3'f;1,st:£f1ed that ll" u what was leased was dliminant purpose of the leased wilhllcoconut trees and the coconut planted only after filing of of occupancy right, the o;.'{,le15_"_" 'f:gib'fi;1a1 dismissing the app=1icat:le'n"Vl'f§r" fight was justified and dial 'call in exercise of the pcswer ef this c=;_>=1rt ufieiergefirificles and 22'? cf tfie Constitutimz {If ' 'eiladigfiyrgax 'ixejing sgggrieizee by {he said onzler of the leamed a --_. dated 29.9.2004 dismissing 12084 the writ petitioners have prefemzizd this '2z3',ppeai.~~ ll We have heatfl the learned Senior counsel apiaealing for the appellants and the learned counsel \?
W12...
Judge was not justified in hokiing flaiaf «_1z§.3:1d_;:*,' W38 ' :
ofwhich occupancy Iighi[c"la:'3aaed Wefe__n;0_i; 31361 the entries in the revenue chtviearly lands were agriculturai lands ; ' t1ierefore',' ' pmsiimption had to be drawn and no §1§a*Jn on the basis of the spot inspeeiioxy 1.3g1:;:c n "c1ecis7x>n of the Hozfble Sugieifie NANJAPPA vs. MATAI}'§__£}ASAI;*§P5E.;::§;g.: AER sew 2542) and also c1seic_§isi<;;3;;A _ BYRAPPA vs. STATE OF' KARNATAKA (19$ Qhemia it is held ma: Tribuna} has it)' rancid' é'~ai{3_gej:'1ce iz1 accordancewith Rule 3.7 of the V. fizaajijsglso upon the decision of ibis court in vs. SHIVAPPA (ILR 1988 KAR 733) _ wheieirz that suit cannot be disposed of when the "'«__VvVq1;estio§i1ve«f tenancy is raised and question of tenancy has to V' vdeéiaed by the Land Tribunal.
6. In response to the arguments of the learned senior counsel appearing for the leanaed counsel appeazting far the centesting respondent "
order passed. by the leameii Single 'is' mitexated the contentions s1.ih1":.;i1'_:'£eci L. submitted that the applicants h§é£$*e.V'never ceggtefifion that applicant Was: cu1ti§fa;?ix1g and he was only tenant of the pmceeciings 0.8.64/73 WI'1€;1"(i§g1' 3;11€ '--i._x;-'a:_~§_ and other civi} ?3 no such contenfion was ial§ei1"by uthejfyfare cuitivating the land as a was also taken zegazding execution 't1:V1Ve-leease éieecfldated 1.4.68 and negaxding entry . gin t?_i1t§;.:.rexir%:n}ic 1'"eeu:>I1cis_and geni receipts and only after the seccnd .,ei"vremand pasged by this couri on 30.7.99 the deed is produced anti the Land Tribunal
--V havifig. to the material on mcoxfi. has held that VV' ?e.eppfigafi{¥John Grregoxy Wa$ staying abroad on 1.3.74 and .'p2Lt1V:ifi<§£1ex*s wen: not cultivating the land and they are not T " 'agi1'cuItur*ists and the contention that they were cultivating " the Land as a tenant and was am having poultzy £31111 is \9«J>-
-16- O.S.No.64/73 er o.s.Nos'1:291?3 or 13;./73 eontezltion taken in O.S.No.64/73 was that__; i;he' _ petiizioners had became owners by adverse ané V' "
the fact that there was a lease deeci_ datgd e receipt dated 20.1.90 weeeet, 'said suit and for the first time the the Tribune} contending 1.4.68 and that lands in respect of which claimed and therefore, the Tribunal AI':i.:%1V_s" moi importance to the saici documenfs pI~'ed1ieed"'beferef the Tribunal. The learned Single V. Judge' iiaké the pec1311a' 1" features existing in the land is situated in respect of which occizpéaincy. eiaimed has to be taken into account anti merely 'b_ec*lause entry is made in the zevenue records the land in respect of which occupancy right is
-.._"V"ela:{:::i ed as agrieu}tu3:'aI'1a;mi would not by itself establish .'»1;¥:1e agrarian zelafionship between the applicant and the Contesting Z'IS':SpOI}€I€I}t-*(}W'fifiI' arzé the ieamed Single \/'* ....'}_8....
house situate in Dakshina u u coconut flees. The learned Single Jzldgehlaslll that the land in respect of' __p'ax_1e'y teas '' V claimed is situate in Kaekanady-- wfiiehvvwaei on the outskirts of Mangaiore Municipal limits of Mangaleze fiiityi-sfiiti' regard to the peculiar nat§;z«t§..:,ef teeteme of the houses situated of recorfls as per the revenue':vv_reee.A:t;te;--"__ Single Judge has rightly helé that meIely._efithe'lfe£t§§s in the revenue recoxtis the eleoulvcl'-neVt'h1e slaidllto he agricultural lands and lease .fiV""a$l. ll9"1l'.'tE"".lfi"'"l agricukm ' "" l '31 Pulpese. The earlier Proceeéings for eviction of the applicant from the hoilee 4}sl:A1;:--1s been leased to the applicant before the 'Lend 'l'i'i3:;_t3.11al and there, no contention was taken that the l"::i_efe:1<f3;ante in the said suit are cultivating the lands as a V. tetiant and What was contentied was that they perfected their uiftitle by adverse posmssion. The learned Single Judge has ztightly held that the lease deed dated £4.68 was not \}u'> produced before the Tribunal in tht: :ia1'1i61f u only after remand for the second tifiic dateé 30.7.99 the saici allegecl V'i%e;:;i§>{:V_ciee§€i 'Lg the year 2002 and geni receigf is '§';§~_on,¢' VdE()es not show tenancy as on that the appiicants were c1'1}'£ij.ratiJ;zg' and were 110$ were tenants fiéken in the earlier pro(:mc¥i11_g§§ an opportunity to contendfljzheyt of the agxiclfltural land amt} therefo1'e, n1:ic%1 not be attached to the said d:;oc1zme1;.4iVts-.v befom the Tribunal. The Land E*§:":a.sV'V'<:§)x1$iae¥LE:f£§ti«vihc evidence adduceci before it and "V£:a:si.¢}:af1=:1{1 Grtrgaxy Wafi never cultivating the land as a teixght not residing at Mangalore, ha was staying Bomizgsf and themafier he shifted to Arab country and V' ?;:as also no matcriai to Show that the 1.-autzd was ..,. 'cuij¥:;'vatcd by the wxzit peiiiicners on behalf of John Gmgozy was agapiicafits were not agzicuiturists and there is no matexial inspaction to Show that the land is ¥::eiI1g cultivated by izhem. The spot; V; %
---2i:)--
made by the Tribunal an 20.10.91 would "
there were 33 coconut saplings whicghhad " "
years next before the date of spot Ofi'~20. poultry faxmjng has aiso beenktaytcd 612$? 1 next before the date of s§ot _vaud."tiz¢: f':=1ctvvf't11at the contention of C1.14'._'l:'_i'i.',':__3'1£J'.OIj'AVV(.)V'f taken in the earfitér for the first time 0:13;? second time by court 'or£'u:f of Tribunal would clearly Show thaf 231:6: must have been planted and [gou1t;y m'a s-.31; have been started afier fiiing of izzefozém the Tribunal and therefore, having véibéve said material on record that there were onlfifive trees at the time of spot inspection which wgrc coconut and coconut saplings have been after filing of the: application before fhfi Tribunal for K grqixferment of occupancy right. The learned Single Judge has '4 rightly held that What was leased was the house with five coconut txees and only after filing of the appiication for V9 .
._ 21 ._ conferment of occupancy right coconut K planted and poultry farming mus? iiavc. V therefore, the finding of the Tfibufiax filed for conferment of be 'V dismissed is justified and fo_r intérfezr:n¢$e in the wfi; paition in cxemisgt: court 'I'h=: orcbr passed ; mgaxd to th: above ani dom not sufir from call for intaferencc in * thk intza oourfappeaé' . L Acco' V Ere hold that then: is no mar': in ap9ca1uandV_Vpe'iss 'ihevfolbwing ordexr .. is Sd/---
Tudge Sd/-
Judge