Karnataka High Court
Paul Saldhana S/O Plad Saldhana vs The Land Tribunal Mangalore on 17 February, 2009
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH ooum' OF KARNATAKA AT
DATED THIS THE 17% DAY Q1? FEBRUA:{*z,ébo9k j %
BEFORE' % i '
THE HOWBLE MR. JUs'i'I<:E smmnv A % % %
WRIT PETITION as ;oo3%:1_,_g._§
BETWEEN:
sri.pau1samhmj -
SloPiad %
Since deceased , "
Legal _ _, V
1(a) rm. sewn %
89 years; W/o
Re.<:idei1t.._of'I(if;a:n Hangs
Bemdel Past, Mangaim-.-03
A'i'(b) 'E&r§;7Agims ;m.=n.,
'W[a D.'MeIl0
% '5Re:Sidé'n.§_aff_Baingalore 407
4 (Jun sgi smoma 'EH8'
Kalwa (W) Thane-400 605
_ I3'Souza, 53 years
' _ = .._W.C~'t3 Henry Saldanha
Resident of A3 «Yasm Food Co.,
% PostBox3228 Safat 13033
Kuwaii
l(d) Pnuuecia Vanda Cross, 30 ymns
D!o Henry Saldanha
Post Box 3228 Safal 13033
Kuwait
1(6) Fr. Chafles Sakianha s
61 years, S10 Paul Saidana '
Resident afAsha, Kira»
Hcaflh Center, Jaiikatag
Bhadrawathi
1(3) Mr. Awmacc Saldanhzii V
59 years, S.i._'t;)'}"-"$31 "
Mangahn-'.
1(3) Canine fi'som,
W/0 . '
Resident of ( lbert
Kap5i§8d,'Bijai
_____
l(h) years
W70
Saklhi
i 1p. K,
Saldanlm, 51 years
_. S'-!o"'Faui Saldana
% Resident ofliimm House
" "Brande! Post
V Mangalow-575 008
@
l(j) Glusiinc Saldanha, 47 years
Die Paul Saidanha
Resident ofMa.1-yhill Convent
Konebhady PM
Mangalorc-.--5'7S 003
(By Shri. G. Balakrishna __ . ' 1
AND:
1. TheLandTn'bunal -. V g
Mangalore
ByitsChairrnafx*[;.TVL:V1" j
Taluk "
Distxict ' '
2.saa:¢orxa:naaag;;%»%%% _ _-
Repxeseneeaby A
%to.Res':emz¢% , " '
Depanm_ em; M..S; .Bh--i_1di:cig
" ' 00: « *
Naik
= Sm Nail:
g4. 35. sumndm Nail:
.. Sip him'):
A' 3'3 and 4*' respondents
Majors, Rcssidcnt of Mu!-Lhya V' PranaTempleRaste Mangalom-S75 001 District D. K. % (By Shzi. v. s. Ganja] and Slui.
Respondents N93. 3 and 4, Shri. B. ' Government Pieadcr for Respondents - "
.;¢§¢, _ Ax » ~v A This Writ Petition is filed "gm: A;_1icle's'226' am: 227 of the Constitution of India, pxagsjng «squash vigle Annemire A dated 28.01.2003 by the Lam} 'I'"i*--ihi1na3_.L etc. This pelil'm:x* havir;.g"%fi and writing on for ofioréeraé fl1is day,.fizb Court daiivered the Ii)lh>wing:- " » as a tenant had sought for mcupyiay of land in survey 903.503, 502, 59/9, so/if, song of Pacirmrnuii Village, Mangalum.
Dislricl, under the pmvisions of the H VV --V Reibtms Act, 1961. The Tribunal, by its units:
'A V' V' gnmwd uocupanty rights as claimed. This was by the mother of rcspondenls 3 and 4, Smt. Seem Bai A % % " 1,, way ofa writ petition before this court in wp2o22xz932. The same was aiiowead and mmanded to the Tribunai inselhr as Survey 3 7 .
tenant of the house and the abutting land, are l'mil-bearing trees in the following words :-
"(KinareAsthi)--Sarvadi which are all shown 113 be part of .
would encompass those lands» extent' ' L' elaimed in survey 310.136/Q...'
4. The Counsel fora attention In the skesfieh at vaxious paints of lime including the peiitmne' t which imm-uy _ by the petitioner being situate unly in saufvey whereas the same exients well into survey sketches mm are available, including the one Surveyor at the instance of this court. This '4 fact is eompletely overiuoked by the tribunal and H hghewfere, there has been a mis:..am* 'age ofjustiee. @ The Tribunal has misread the entries in the mmrdwfilsifights. The petitioner is shown as Ihc chalageni lenanl at point of {H118 as eariy as 1968459. Thexgwas Ia'-'J'¢'1a£.§§§~ " . cultivation as "1" in flavour of the emznuuusly presumed that the in the in V L' be lnsamed tithe!" as joint, 'éti'I£i.vai§¢Jn of the landlord. The tribunal ha; V"';:;.v'fi:§sumpfiun under mciion 133 of Act, 1964, in favour receipts mam, wig ;»¢ag1§73.74 an the dais: of claim. And there" no anywhere in the vicinity, it was crucial at a finding whether the said house was s;;eam;nwwgyno.m2 and only then, me tenor and pulpufl of V'iV:1:g'z1fi4"::nenl amid have been propedy interpwted by the '4 The finding of the isibunal that the petition is not land is cammeuns and arbitrary. The existsmcc of fruit- Lrucs which has been admitted by the witness uf the msptmdcnis is overlooked by the lribuna}. 'Z . S. The counsel seeks to place reliance judgments: ' é
- Kzmmla Devi vs. Tulthalmu To support the conljsnlion of Indian Evidenta: Act, would of documents. Angl iha_e_: in violation at these guidcligzeé," to be set asides.
- v.1 the Land Tribzmal, the of ocrtain land was far stacking fixldcr floor, whemms in a small of the land, In answering the quesiicm whether the in Sectiun .'2(l8) 01' the Kamaluka Land Refurms includes land used fer a purpose subservient to amm and [he definition 01' the word 'culfivale' imam improving agricultural mtxiuee, it was hcid that it is not catmtacl to say [hat unless basic oprcratitms like filling, sowing and planting 8 are carried en in the kind, that there is no cultivation fur paiqxises of Section 45 of the Act. Even when the land is stacking hay and as a threshing [tour and onty ii"
cultivated, it is still ncganied as 3 icultivatedi. '1" * " _ it .. Huchtwab Jtmglimb I981(1)KlJ1I8 u A % % Whcrein it was held this i.,.a.--. 'fqvell and an area around :iae;»eiaeii;isg;tr;;;z wiiiaii. the definition ofland as the well is the land and is a purpose sub-sclwiegit toiiagsieuiiiuxe. . Devasltmam, Smwada vs. Subbmma Shelly (4) 13.1229 this court has taken judicial notice of the that that in the district ef Dakshina Kannada is land where ' and plants are grown for the purpose of securing green leaves for manuréng the adjacent cultivable land. And that unless 3 11 the "hznii" land is 3130 used,' the cuitivabte "
bcneficiafly cultivated. And h¢*:r:ce,v.':'l1:sui4¥i§"& wt E sub-scrvient purpose in agticulture,'A:'Ai_s:'~--gt1tt§cJ definition of the term.
that W"?! 'he W" 91' or survey no.
rights in This is for that jtxttfitifltflti and was never the subject matterVqIv' .i;V;-1.,£§t¢;:_3:ur' the petitioner. On tlm other hand, V' Sylvester Manages to the extent of 2 33maag,twhth is a portion of survey 310.136/2. The of survey nQ.l36f2 is not cultivable: and is ptmja land. The Penn.' men-3 continued to be in of these lands where there is spuntaneuus gmwth of Vt it: "fru'it--bearing and other Ewes. @ 12
7. Admittedly, the petitioner has not pmdueed any documentary evidence to Show that survey m).136!2 was 3 teaanted land. It is significant that the ehalageni the vakkalu kararu in Ihvour ef the petitioners do not no.l36f2, though other survey numbengate the respondents do not dispute. Itvlis petitioners claim in the first 1 36)? L' was allowed to the extent pl' 5 was not challenged. However, Vh h' befeav the t1ibunal:;.,_t:n-_extet1'tV:;§£'! me claimed which is clearly a o¢mua.zs¢:;.;nt at also significant that the petitiuner another in Fem! No.7-A which. etmsideratiun to this day in respect of the very The respondents deny that they are not V'K..L*..agrieultt:tfi§sts. Inwfar a as the tueation of the house of the is ceneemed, the same is in survey nu.S0f8 as is found K the surveyor though the petitioner has enemaehed to the extent % 13 of 9 squat:-3 melon: into survey no.l36/2, the main house to lhe extent of 100 square meters is dearly in survey no.5')/8-
3. The Counsel for the rtsspomicnls wuuld .1,..?,%._,.%%:a%; a sketch forming part of the deal of demonstrate that {he house is msozs and nut in I36/*2.
petitioners to contend am: the or .l.z§ri;£_i:§V'§'iAn_Q3e vukkala karam would lead lo a in use and m:cupalf1'dhW6f an exaggemlion. And" the sub-serv;t5nut-- iajids *»a-.-."m':.h would my! fat exueud the extent of magma: gazaivabse IA£n:ViA."' "This m.-posaeums ciuina, on the fame use ofsub-servitml land adjacent to the 1 described in the hast: deeds, am: [hum lands H VV .V whibh within the smvey number and cannot extend far cuiiivable land and iherefom, Ihc Counsel would j_ % that the peliiion be dismissed. 3 14
9. By way of reply, lhe Counsel for the submit lhal as per the survey peliI.umer:s° * is situate in survey 2 only a porl1on' of it. Similarly, 'My yéell V water for the Gum petitioner namely, survey §0/6 of which is in occupation is lln the absence of irrigation petitioner is not in a ,....,;.su,..l,c.,ata;.l;;e;.e§;.;segebmmd in his favour. And izsllllurilserl [hat as observed by this 001211 in irrigated lands by themselves cannot sub-servieal lands and the tree-growth is mud it is this peculiar circumstance which the gram of such land adjacent to the cultivable l ll:._llla;_i(i,~ri~l1ich lhe album: has failed to undensland and the ngpondcnls are merely pa:-ruling the reasons assigned by the l ' Tribunal.
8 15
10. On a close consideration of these rival wnksntinms and the record made available by tha':
Pleader, the tits! significant feature as mas, has made 3 claim in mspuct of survey . u do not refer to the said survey It id " 3 to draw a presumpuon" in land in survey no.l36l2 ispm: is available for the better caxuaafiggg of which, the I that upm from an extent of land granted Memmss the: remaining port1on' of pamja mm is not disputed by the A granted to Sylvester menezes is abutting and H Vt .V surrtiundsi tttetgcuttivatsle land in the uuctxpation of the only seeks to counter the case: of the resptmdtmhs jquustioning the logic cast' the mspondents in asserting that 'V V _ u" gylvestw Men:-mes could not have been granted occupancy rights 6 in any portion ofsuwey 110.136/2 if it was punja land. no infirmity in the ccmtcniitm of the respomkmts ;.. :.a£t§is obviously, the cultivable portion of l36f2_is in the Sylvester Mtsnezes. Tins cemtxmd that the open well "in i only watcr stmnxs for his:"s;g1ltiv:sbie:A.iiii:ttst. which is sittsatts within survey for drinking purposes, are g[3t.t'i. the pelitionefis cemveniame. _i it "
12. seriously urged to demonstrate that V' is situate in survey 130.136/2 cannot be
-- 3 of it is seen to extsend into i which wconiing to the mspomksnts is a mmt whereby the petitioner seems to have encrouched A nu.I36/2. The fact mmains that the major porn} in at' house is sittmtm well within survey no.S0f8. The 3 i also does not explain his conduct in having filed Form no.7A 6' I7 laying claim to the wry land which is the snlject matter of these pmoecdings, even during the pendcnoy of these fit)0OeIfi!tg;§.'» 'l11iS tniiiiales against the boua-fades of the entries do nut also favour the a d at be highlighted, pcriaining In the ' the case of the in the 0f "
V 13, is punju land and is nui culiivgxbie w.,.is.1aa._.o;...&,e..,:,c mm in flavour of the rcs[:x)n1k'.n!:s. """ Shim "K3 331733 3.8 S!'!b~&3!Vi6!li lflfld _ ume of cultivable land in his p:)ssem:1n' , _ be accepted, especially having mgard to the large % ' §s*1.;;md am is claimed as amb-salvient land and noi moldy esutnue which is aflegefiy mid to be situate in survey T The 0.-dc: of the Ttibtmai lhemfixe does not warrant A imerferenoe. The sevemi other documents which have been 6 18 highlighted by the Counsel for the strengthen the circumstances Ihat The several auihorities cited also % making out a case. The S sd/-1 Iudqé {IV