Karnataka High Court
Alice Pinto vs Sri Sitharam Shastry on 10 September, 2013
Author: N Kumar
Bench: N Kumar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 10th day of September 2013
PRESENT
THE HON'BLE MR. JUSTICE N KUMAR
AND
THE HON'BLE MR. JUSTICE V. SURI APPA RAO
Writ Appeal No. 509 of 2006 (LR)
BETWEEN:
1. Alice Pinto
D/o late Cashmir Fernandes
Aged 52 years
Residing behind Bharathi
Beedi Works, Kadri Road
Mangalore - 575 003
2. Joseph Henry Fernandes
S/o late Cashmir Fernandes
Aged 48 years
Residing Behind Bharathi
Beedi Works, Kadri Road
Mangalore - 570 003
3. Francis Arthur Fernandes
S/o late Cashmir Fernandes
Aged 46 years
Residing Behind Bharathi
Beedi Works, Kadri Road
Mangalore - 570 003 ... Appellants
2
(By Sri Ashok Haranahalli, Senior Counsel for
Sri B.L. Acharya, Advocate)
AND:
1. Sri Sitharam Shastry
Aged Major
R/o Near Sharavu Temple
Ganapathi High School Road
Mangalore
2. Sri Gerald
S/o B.C. Mascarenhas
Aged Major
C/o Judith Mascarenhas
Behind Jugul Building
George Martis, Mallikatte
Mangalore
3. Smt. Carol
D/o B.C. Mascarenhas
Aged Major
C/o Judith Mascarenhas
Behind Jugul Building
George Martis, Mallikatte
Mangalore
4. Sri Aloysius
S/o B.C. Mascarenhas
Aged Major
C/o Judith Mascarenhas
Behind Jugul Building
George Martis, Mallikatte
Mangalore
5. Smt. Lynette
D/o B.C. Mascarenhas
Aged Major
3
C/o Judith Mascarenhas
Behind Jugul Building
George Martis, Mallikatte
Mangalore
6. Smt. Elaine
D/o B.C. Mascarenhas
Aged Major
C/o Judith Mascarenhas
Behind Jugul Building
George Martis, Mallikatte
Mangalore
7. Sri Hugh
S/o B.C. Mascarenhas
Aged Major
C/o Judith Mascarenhas
Behind Jugul Building
George Martis, Mallikatte
Mangalore
8. Miss. Mary Mascarenhas
D/o M.M. Mascarenhas
Aged Major
Provident Convent
Gandhi Road, Nadacavu Post
Calicut-11, Kerala State
9. Theresa Mascarenhas
D/o M.M. Mascarenhas
Aged Major
Carmal Convent
Dhontali, Nagapur
10. Smt. Ashraf Unnisa
W/o late A. Rehman
Aged Major
'Moonnist' 2nd Cross
4
Babugudda, Attavar
Mangalore - 575 001
11. Sri Rizwan
S/o late A. Rehman
Aged Major
'Moonnist' 2nd Cross
Babugudda, Attavar
Mangalore - 575 001
12. Sri Maqbool
S/o late A. Rehman
Aged Major
'Moonnist' 2nd Cross
Babugudda, Attavar
Mangalore - 575 001
13. Sri Shakil
S/o late Rehman
Age Major
'Moonnist' 2nd Cross
Babugudda, Attavar
Mangalore - 575 001
14. Sri Suhel
S/o late A. Rehman
Aged Major
'Moonnist' 2nd Cross
Babugudda, Attavar
Mangalore - 575 001
15. Smt. Shamshad
D/o late A. Rehman
Aged Major
'Moonnist' 2nd Cross
Babugudda, Attavar
Mangalore - 575 001
5
16. Smt. Shagira
D/o late A. Rehman
Aged Major
'Moonnist' 2nd Cross
Babugudda, Attavar
Mangalore - 575 001
17. Smt. Shamira
D/o late A. Rehman
Aged Major
'Moonnist' 2nd Cross
Babugudda, Attavar
Mangalore - 575 001
18. Smt. Reshma
D/o late A. Rehman
Aged Major
'Moonnist' 2nd Cross
Babugudda, Attavar
Mangalore - 575 001
19. The Land Tribunal
Mangalore
Represented by its Chairman
Mangalore - 11
20. The State of Karnataka
Represented by its
Secretary to Government
Revenue Department
M. S. Building
Dr. B.R. Ambedkar Veedhi
Bangalore
21. K. Shabir
S/o late Baba Sahed
Police Line
Mangalore, D.K.
6
22. B. Ramesh Mallya
S/o Krishna Mallya
Aged about 55 years
Mallya Compound
Metha Mogeru
Falnir, Mangalore ...Respondents
(By Sri Kukkaje Ramakrishna Bhat,
Advocate for R2, R4, 6 & 7;
Sri G. S. Srikante Gowda, Advocate for R10 to 18;
Sri D. Vijayakumar, AGA for R19 to 20;
Sri K.A. Ariga, Advocate for R21;
Sri S. Prakash Shetty, Advocate for R22;
R1 served; R3, R5 and R9 notice dispensed with;
R8 deleted vide order dated 11.7.2007.)
This Writ Appeal filed Under Section 4 of the
Karnataka High Court Act praying to set aside the order
passed in the Writ Petition No.25634 of 1997, dated
17-02-2006.
This Writ Appeal coming on for hearing this day,
N. KUMAR J., delivered the following:
JUDGMENT
This appeal is preferred against the order passed by the learned single Judge who has declined to interfere with 7 the order passed by the Land Tribunal rejecting Form No. 7 for grant of occupancy rights.
2. The subject matter of the dispute is, land bearing Sy.No.254 measuring 69 cents and Sy. No. 277 measuring 6 cents, situated at Kodailbail Village. Cashmir Fernandes filed an application in Form No. 7 for grant of occupancy rights. In the first round of litigation on 30.10.1981 the occupancy rights were granted. In the Writ Petition preferred against the said order, this Court set aside the order of the Land Tribunal and remanded the matter back to the Tribunal for fresh consideration. After remand, by an order dated 14.10.1987 the application of Cashmir Fernandes was rejected. Aggrieved by the said order he preferred an appeal before the Land Reforms Appellate Authority which came to be rejected affirming the order of the Land Tribunal. Against the said order of the Appellate Authority, CRP No. 3944/1989 was preferred before this Court. This Court by an order dated 23.7.1993 set aside the order passed by the Appellate Authority as well as the Land 8 Tribunal and remanded the matter back to the Tribunal for fresh enquiry in accordance with law. Again after such remand and enquiry, Form No.7 came to be rejected by an order dated 15.7.1997 on the ground that the land in dispute is not an agricultural land. The applicant is not an agriculturist tenant and therefore the Karnataka Land Reforms Act is not applicable. Aggrieved by the said order, the applicant - Cashmir Fernandes preferred W.P. No. 25634/1997 before this Court. The learned single Judge by a considered order dismissed the said Writ Petition holding that the land do not fall under the category of agricultural land but on the other hand it is the house property coming within the municipal area. Merely because few fruit bearing trees are grown, that does not alter the nature of the lands from non-agricultural to agricultural lands. The applicant is a Central Government employee working in the Coir Board and he was not an agriculturist nor was there any relationship of land lord and tenant in respect of the land in question. Therefore, he did not find any good ground to 9 interfere with the order of the Land Tribunal and accordingly dismissed the Writ Petition. It is against the said order, the present Writ Appeal is filed.
3. Learned senior counsel appearing for the appellants assailing the impugned order contended that, though there is no mutation entry in the name of the original applicant either prior to 1.3.1974 or subsequent to 1.3.1974, the other material produced on record clearly shows he was in occupation of the land, cultivating the same as a tenant. In fact by filing suit for ejectment against his brother-in-law in execution of the said decree, he had been thrown out. He filed an application for redelivery which application has been allowed and the said order has become final. In the said proceedings it has been held that he is a tenant in respect of the schedule property. Though the house is situated in Sy. No. 277, the agricultural land is situated in Sy. No. 254 which is a garden land, the trees are all grown by him and now they are yielding fruits and therefore he submits a case of tenancy was made out which has not been properly 10 appreciated both by the Tribunal and the learned single Judge. Therefore, he submits the impugned orders are liable to be set aside.
4. Per contra, the learned counsel for the respondents submitted that, the land in question is in the heart of the Mangalore City. It is not an agricultural land. No agricultural activities were ever effected. In Sy. No. 277 measuring 6 cents there is a house property. The tenancy was in respect of the house property. There is no tenancy in respect of the adjoining land Sy. No. 254. The documents produced at an undisputed point of time shows that, in the year 1964 applications are made to the Municipal Corporation for putting up a cowshed and lavatory and permission is obtained, constructions are put up, electricity and water connections are taken and it was in the occupation of the brother-in-law of the applicant who was the original tenant and he also continued in the said house premises. The tenancy is of the house and not that of the land. In the revenue records there is no whisper about the 11 land being cultivated and the name of the defendant being shown. It is under those circumstances, on a careful examination of the material produced on record, the Tribunal as well as the learned single Judge have rightly held that the land in question is not an agricultural land, applicant was not a tenant, the provisions of the Land Reforms Act is not applicable and, therefore, the impugned order does not call for any interference.
5. In the light of the aforesaid facts and the rival contentions, the points that arise for our consideration are,
(a) Whether the land in question is an agricultural land?
(b) Whether the applicant was a tenant of the said land?
(c) Whether the impugned order calls for any interference?
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6. It is not in dispute that, in the land bearing Sy. No. 277 measuring 6 cents there is a house property and in the land bearing Sy. No. 254 which measures 69 cents fruit bearing trees are grown. The said property was held on mulgeni right through the Settlement Deed dated 13.10.1925 (Document No. 2344/1925 of the District Registration Office, D.K.). The settlement deed shows that there were two residential houses one in T.S. No. 254 and the other in T.S. No. 277 besides trees and drinking water well at the time of the Settlement Deed in 1925. The area was a residential house site and not agricultural land and that it came to them as a house site. It continues to be a residential site as evident from the Zone Certificate issued by the Mangalore Planning Authority. The plots bear Town Survey numbers, they are taxed by the Municipality as land with buildings and situated in the midst of other house sites, beedi factory and buildings. The house T.S. No. 277 was in the occupation of Sri E.S.Lobo, the brother-in-law of the applicant. Sri Lobo continued to reside till he constructed a 13 house of his own in Maroli Village. The applicant constructed a house before 1972, sold it away in 1973 and stayed unauthorisedly in the house rented out to Sri E.S.Lobo. The mulgenidar initiated proceedings for eviction of Sri E.S. Lobo from the said property in HRC No. 245/1980 which was a petition under Section 21(1)(a) & (f) of the Karnataka Rent Control Act. An order of eviction came to be passed. The order was executed in Execution No. 389/80. Complaining of illegal dispossession the applicant preferred an application for redelivery. After trial, the Court held E.S.Lobo was not in possession of the house when the eviction proceedings were initiated and he was not dispossessed and it was the applicant who was dispossessed. He was there in the capacity as a tenant not claiming any right under E.S. Lobo but in his own right and therefore he was directed to be put back in possession. The said order has become final. The said proceedings show that the applicant is in possession of Sy. No. 277 measuring 6 cents where there is a residential house. The tenancy pleaded is that of the house and not of 14 the land. Relying on the said proceedings it was contended that the said material shows that the applicant was a tenant in respect of the property in question. It is true it shows his tenancy in respect of the house premises and not as a tenant of an agricultural land.
7. In so far as the agricultural land in Sy. No. 254 measuring 69 cents is concerned, when he claims to be in possession much earlier to 1.3.1974 there is no revenue records evidencing the same. He relies on the geni receipts issued by the representative of the mulgenidar, in fact who has deposed in his favour before the Land Tribunal also. There is nothing on record to show that the person who has issued the receipt and who was deposed was representing the mulgenidar. The said records also do not conclusively prove that there was a tenancy in respect of an agricultural land. Admittedly, in the 69 cents of land, fruit bearing trees are in existence from considerable time. The tenancy pleaded is that of a chalgeni tenant. His possession over the residential premises in Sy.No.277 does not prove the 15 chalgeni tenant. Similarly, in the absence of revenue records showing his possession, when he claims to be in possession for more than 30 years, his case of chalgeni tenancy in respect of land bearing Sy. No.254 measuring 69 cents cannot be accepted. In fact the material on record, the exchange of notices, the statements given and also the proceedings before the Urban Land Ceiling authorities, all of which clearly demonstrate the land in question is situated in the heart of the Mangalore City, it was not an agricultural land, it was not cultivated and at any rate there is nothing to show the applicant cultivated the land as an agricultural land. It is in this background when two fact finding authorities on a careful consideration of the entire material on record have concurrently held that the land in question is not an agricultural land, applicant is not a tenant of an agricultural land, the question of such land vesting in the Government as on 1.3.1974 does not arise and accordingly the provisions of the Karnataka Land Reforms Act is not applicable.
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8. At this juncture it is to be noted that the Karnataka Land Reforms Act was enacted with the avowed object of conferring ownership on tenants who were cultivating the land. In other words, tiller of the land was given the land. So, the condition precedent to confer the occupancy rights is, the person who claim occupancy rights should be the tiller of the land. The evidence on record is the applicant did not till any portion of the land. He was occupying a residential portion, he obtained licence from the Municipality, constructed a cowshed and lavatory, obtained electricity connection and he was residing there with his family members. The very fact that the landlord had to initiate eviction proceedings under the Rent Act shows that the said land was not an agricultural land, it was exclusively a residential property. It is in those proceedings the applicant was able to get redelivery and therefore the evidence does not prove the agricultural tenancy either in 17 respect of land bearing Sy. No. 277 or land bearing Sy. No.
254.
9. In the land bearing Sy. No. 254, the material on record shows there exist 17 coconut trees, 15 small coconut trees, one mango tree, 5 mango plants, 2 chickoo trees, 40 banana trees, 400 ananas plants, 9 jackfruit trees, 1 jackfruit tree, palm tree, 2 tamarind trees, according to the applicant. It is very difficult to believe that so many trees could be accommodated in an area of 69 cents. On the contrary, the evidence of the owner shows on the said land there exist fruit bearing mango trees, jack fruit trees, coconut trees and none of which are planted by the applicant. It is in this context the case of the applicant that it is an agricultural land is rightly rejected by the two fact finding authorities. In that view of the matter, we do not see any justification to interfere with the well considered order passed by the two authorities which in turn is based on legal 18 evidence. There is no merit in this appeal and accordingly it is dismissed.
Sd/-
JUDGE Sd/-
JUDGE ckl/-