MONTHI MENEZES (D) BY LR. versus DEVAKI AMMA (D) BY LR. & ANR. on 23 April 2019

1. This appeal by special leave is directed against the judgmentand order dated 12.03.2008 as passed by Division Bench of the HighCourt of Karnataka at Bangalore in Writ Appeal No. 2202 of 2006,affirming the order dated 17.11.2006 as passed by learned Single Judgein Writ Petition No. 11344 of 1999.

1.1. By the said order dated 17.11.2006, learned Single Judge ofthe High Court allowed the writ petition filed by respondent of the presentappeal (now represented by her legal representative) and set aside theorder dated 28.01.1999 passed by the Land Tribunal, Bantwal Taluk,Karnataka in TNC No. 10579 of 1974-95 whereby the Tribunal haddeclared the applicant Shri Bona Menezes (predecessor of the presentappellant - who is also represented by her legal representative) as tenantof 3.07 acres of land in Survey No. 119/2A1 of Kuriyala village.

2. The relevant background aspects of the matter could be takennote of as follows:- A

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A2.1. The Amended Karnataka Land Reforms Act, 1961 (the ‘Actof 1961’) came into force w.e.f. 01.03.1974. By virtue of amendedSections 44 and 45 thereof, all the tenanted lands vested with theGovernment and all the tenants were entitled to be registered asoccupants[1]. Every person entitled to be registered as an occupant underSection 45 was required to make an application in that behalf before theBTribunal within the stipulated time. Such an application was required tobe made in Form 7 appended to the Karnataka Land Reforms Rules,1974.

2.2. Shri Bona Menezes, predecessor of the appellant, made anapplication in the prescribed Form 7, claiming occupancy rights overCvarious parcels of land while alleging that he was cultivating the land inquestion for about 40 years on payment of 50 Muras of rice per annumto the landlord; and he was also making payment of land revenue andlevy. The landlord (respondent herein) appeared in response to the noticeissued on the application so made by Shri Bona Menezes and specificallyDraised objection in respect of the land in Survey No. 119/2A1, which isthe subject matter of dispute in the present appeal. The landlord alsoraised objection in relation to the land comprising Survey No. 143/2B,Survey No. 144/2 and Survey No. 144/6 while stating no objection ingranting occupancy rights to the applicant on other parcels of land. Themain plank of the case of the landlord had been that the said parcels ofEland comprising Survery Nos. 119/2A1, 143/2B, 144/2 and 144/3 were‘Punja’ lands, which were not cultivable and were not leased to theapplicant.

1 For ready reference, the relevant provisions contained in sub-section (1) of Section 44Fand sub-section (1) of Section 45 are extracted as under:-44. Vesting of lands in the State Government- (1) All lands held by or in the possessionof tenants (including tenants against whom a decree or order for eviction or a certificatefor resumption is made or issued) immediately prior to the date of commencement of theAmendment Act, other than lands held by them under leases permitted under Section 5,shall, with effect on and from the said date, stand transferred to and vest in the StateGGovernment.45. Tenants to be registered as occupants of land on certain conditions.-(1) Subject tothe provisions of the succeeding sections of this Chapter, every person who was apermanent tenant, protected tenant or other tenant or where a tenant has lawfully sublet,such sub-tenant shall, with effect on and from the date of vesting, be entitled to beregistered as an occupant in respect of the lands of which he was a permanent tenant,protected tenant or other tenant or sub-tenant before the date of vesting and which heHhas been cultivating personally.

2.3. After taking necessary evidence and after spot inspection on06.03.1981, the Land Tribunal came to the conclusion that so far as theland comprising Survey No. 119/2A1 was concerned, the applicant wasusing the same for agricultural purpose and in fact, without this land, hecannot cultivate the other parcels of land. The Tribunal, therefore, rejectedthe objections of landlord in regard to this land in Survey No. 119/2A.However, as regards other parcels of land for which, the landlord hadraised objections namely, those comprising Survey No. 143/2B, 144/2and 144/3, the Tribunal found that they were situated at a distance awayfrom the agricultural land of the applicant and hence, rejected his claimin that regard. Accordingly, the Tribunal, by its order dated 18.06.1981,registered the applicant as an occupant in relation to the other parcels ofland that were not objected to as also in relation to land comprisingSurvey No. 119/2A1 to the extent of 3.07 acres. The Tribunal concludedthe matter as follows:

“The lands leased have vested with the Govt as on 1.3.74 asper amended Land Reforms Act. Hence applicant is registeredas occupant for the lands mentioned below- Noticeable it is that the applicant had claimed occupancy rightsover the entire Survey No. 119/2A admeasuring 4.71 acres but he wasgranted occupancy rights only to the extent of 3.07 acres therein.

2.4. Aggrieved by the aforesaid order dated 18.06.1981, therespondent-landlord preferred a writ petition in the High Court, beingW.P.No. 19746 of 1981, essentially questioning the grant of rights in A

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Arelation to the said 3.07 acres of Survey No. 119/2A1. The High Courtallowed the writ petition and remanded the matter for fresh inquiry asregards the said land of Survey No. 119/2A1.

2.5. In the detailed inquiry undertaken pursuant to the order ofremand, the Land Tribunal recorded the statement of parties whileBextending opportunity of cross-examination to the respective opponentsand also took on record the documentary evidence adduced by the parties.After thorough examination of the material on record, the Tribunal againfound justified the claim of the applicant as regards the said 3.07 acresof land in Survey No. 119/2A1 and allowed his claim, inter alia, with thefollowing findings and observations in its impugned order datedC28.01.1999:- “During the spot investigation what is found is that thesy no. 119/2A is divided by a stone making it 119/2A1 and119/2A2- first belonging to applicant and another belongingto landlord. 119/2A1 measuring 3.07 acres is in possessionDof applicant and 119/2A2 measuring 1.64 is in possession oflandlord and the same are divided by stone. The same is alsoclarified by the survey and measurement report.

From the above it is clear that sy no. 119/2A1 3.07 acreswas in possession of Bona Menezes as on 1.3.74 and prior toit.

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In this back ground if lease chit is perused it becomesclear that it mentions that for better cultivation anddevelopment of SY No. 19/4, 18/22, 20/1 this disputed pieceof land was included for procuring manure wood fodder etc.In Bantwal taluk of South kanara District it is commonpractice not to include in lease chit. Hence in this backgroundit is declared that Applicant was lawful tenant of sy no. 119/2A1 3.07 acres.

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Further it is seen that for Khatha no. 34 applicant haspaid land cess. This khatha no. 34 is included in lease chitand hence lease chit covers sy no. 119/2A1.

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Disputed land is abutting leased lands. For bettercultivation fodder, grass wood etc are very essential which MONTHI MENEZES (D) BY LR. v. DEVAKI AMMA (D) BY LR.[DINESH MAHESHWARI, J.]

can be procured from this disputed land. Applicant was giving½ muras of rice p.a. separately for this land. Declaration isalso filed in time. As per the surveyor report of 1977 and1981 there was a stone fencing demarcating 3.07 acres in syno. 119/2A1 and 119/2A2. hence applicant is entitled to beregistered as occupant of 3.07 acres in sy no. 119/2A1.”

2.6. Aggrieved by the aforesaid order dated 28.01.1999, thelandlord preferred a writ petition (W.P.No. 11344 of 1999) before theHigh Court. The Learned Single Judge of High Court proceeded toallow 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 DivisionBench decision of the High Court in the case of Subhakar and Ors. v.

The Land Tribunal, Karkala Taluk, Karkala and Ors.: (1994) KLJ524. The learned Single Judge also observed that, even otherwise, therewas no material on record to establish lawful tenancy, much less landlord-tenant relationship over the land in question. According to the learnedSingle Judge, the Tribunal was swayed by the fact that the applicantwas in possession of the land at the time of spot inspection, but merepossession, by itself, was not sufficient to establish lawful tenancy orlandlord-tenant relationship. The Learned Single Judge also observedthat the payment of land revenue was of no relevance and further thatthe Land Tribunal had ignored the relevant material on record whileproceeding on irrelevant material and under misconception of law. TheLearned Single Judge allowed the writ petition while observing, interalia, as under:- “3. Even otherwise, an examination of the order impugneddiscloses that there is no material on record to establish alawful tenancy, much less a landlord-tenant relationship overthe Punja land in question. The Tribunal was swayed by whatit noticed at the time of spot inspection that the applicant wasin possession of the land. Mere possession by itself andnothing more cannot establish lawful tenancy or landlord-tenant relationship. So also, the receipts for having paid theland revenue in respect of the land in question is not AB

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substantial legal evidence of a fact of existence of a lawfultenancy. Payment of tax has no relevancy to the claim oftenancy. The Land Tribunal, without considering relevantmaterial on record and eschewing irrelevant material, by amisconception of law and fact, conferred occupancy rightsin favour of the applicant over land which was notagricultural. In that view of the matter too, the orderimpugned is unsustainable.

In the result, the Writ Petition is allowed. The order dated28.01.1999 Annexure “B” of the Land Tribunal is quashed.”

2.7. Aggrieved by the order aforesaid, the applicant-appellantpreferred an intra-court appeal but the same was dismissed by the DivisionBench of High Court while observing as under:-

“2. The only point that would arise for consideration iswhether the land being a punja land, which is an undisputedfact, was brought under cultivation and was it in fact treatedas an agricultural land as on the appointed date i.e. 1.3.1974.The tribunal, no doubt, based on the spot inspection madesomewhere in the year 1981 comes to a conclusion that it wasbrought 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 enjoymentof the Sy. No. 119/2A-1. The contention of the landlady isalso to the effect that except this land all other lands were thesubject matter of Chalageni Chit.

3. The Learned Single Judge by referring to a Division BenchJudgment of this Court in the case of SUBHAKAR ANDOTHERS VS. THE LAND TRIBUNAL reported in 1999(4)KLJTR 524, held that unless there is positive evidence to showthat as on 1.3.1974, though the land being described asPunja Land was brought under cultivation, there cannot begrant of any occupancy rights in respect of such lands. Thesaid observation of the learned Single Judge is based onrecord and especially the fact of tribunal placing reliance onthe spot inspection made in the year 1981, almost seven years after the appointed date. We do not find any good ground tointerfere with the said order of the learned Single Judge.”

3. Assailing the order aforesaid, it has strenuously been argued onbehalf of the appellant that her predecessor was entitled to a lawfultenancy in respect of the land in question comprising Survey No. 119/2A1, admeasuring 3.07 acres where he had grown mango trees, cashewand grass for grazing cattle. Learned counsel has argued that the Tribunalhad on two occasions categorically found that the applicant was inpossession of the land in question as on 01.03.1974 and immediatelyprior to it; that the land in question was necessary for cultivation of theadjacent land available with the applicant; and that such a fact wasborne out of the lease chit also. Learned counsel also argued that theHigh Court has failed to take note of the definition of “agricultural” andthat of “land” as contained in Sections 2(A)(1) and 2(18) of the Act of1961. According to the learned counsel, the land in question answers tothe description in Section 2(18) of the Act of 1961 and occupancy rightscould not have been denied. Per contra, learned counsel for thecontesting respondent has vehemently argued that no case for interferencein the orders passed by the High Court is made out, particularly whenthe applicant had not produced any documents before the Land Tribunalso as to establish the fact that the land in question was an agriculturalland as on 01.03.1974. According to the learned counsel, the LandTribunal relied only upon the spot inspection conducted on 06.03.1981and granted occupancy rights in favour of the applicant without examiningthe question as to whether the land in question was an agricultural landas on 01.03.1974; and when the land in question had admittedly been aPunja land, the Tribunal could not have granted occupancy rights therein,for Punja land being essentially a non-agricultural land.

4. Having heard learned counsel for the parties and havingexamined the record of the case with reference to the law applicable,we are inclined to allow this appeal and while setting aside the ordersimpugned, remand the case to the High Court for deciding the writ petitionafresh on merits and in accordance with law.

5. We have taken note of the relevant part of the observationsmade by the Land Tribunal as also by the High Court in this matter. In acomprehension of the entire matter, we are constrained to observe that A

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Awhile disapproving the order passed by the Land Tribunal, the High Courtappears to have proceeded either on irrelevant considerations or whileignoring the relevant aspects of the matter. It is for this reason we feel itimperative that the matter be restored for reconsideration by the HighCourt.

B6. As noticed, the Land Tribunal in the first place examined theentire matter in detail and upheld the objections of the landlord in relationto the land comprising Survey Nos. 143/2B, 144/2 and 144/3, though theapplicant was claiming the occupancy rights therein too. As regards theland comprising Survey No. 119/2A1, though the applicant claimedoccupancy rights over 4.71 acres, the Tribunal granted such rights onlyCto the extent of 3.07 acres after finding that such parcel of land wasbeing used for agricultural purposes and without this land, the applicantcannot cultivate the other parcels of land. After the matter was remandedby the High Court for reconsideration, the Tribunal undertook fresh inquiryas regards the said land of Survey No. 119/2A1 and again accepted theDprayer of the applicant with the clear finding that the applicant was inpossession of 3.07 acres of land in Survey No. 119/2A1 as on 01.03.1974and prior to it. The Tribunal also held that this land was given to theapplicant for better cultivation and development of other parcels of landwith him and therefore, non-inclusion of this parcel of land in the leasechit was of no adverse effect on the claim of the applicant. As regardsEsuch categorical findings of the Tribunal, the learned Single Judgeproceeded to observe that mere possession or mere payment of landrevenue was of no effect because there was no material on record toestablish a lawful tenancy and landlord-tenant relationship.

7. With respect, we are unable to find if the learned Single JudgeFat all adverted to the reasons that had prevailed with the Tribunal thatthe land in question was allowed to the tenant for better cultivation ofother parcels of land. The learned Single Judge also observed, withreference to the Division Bench decision in Subhakar’s case (supra)that unless Punja land was shown to have been brought under cultivation,Git would not be recorded as agricultural land. However, in the saiddecision, Division Bench of Karnataka High Court has also observedthat the question as to whether Punja Land is cultivable or not is a purequestion of fact. In the said decision, grant of occupancy rights wasdenied on the given set of facts, where only thatched grass had grown H

naturally on the land in question that was shown to be Punja land and itwas also found that there was a built house surrounding the land inquestion. The said decision in Subhakar’s case (supra) could only beread in the context of the facts therein and the relevant factual aspectsof the present case cannot be ignored.

8. While dealing with the intra-court appeal against the order sopassed by the learned Single Judge, the Division Bench, in paragraph 2of its judgment has even gone to the extent of observing that, as per therecord, the landlord was in possession of the land in question as on theappointed date. In fact, such had not been the finding even by the learnedSingle Judge, who proceeded to observe that mere possession by itselfcannot establish lawful tenancy. The findings of the Tribunal, on thecontrary, had been that the applicant Shri Bona Menezes was inpossession of the land in question as on 01.03.1974 and even prior to it.

9. The significant aspects of the matter, as taken into considerationby the Tribunal, had been that there was a reference in the lease chitabout mango trees, cashew, tamarind and the lessee was to enjoy thefruits of the allied land also. The Tribunal also observed that for thepurpose of cultivating other land, the applicant had to depend upon theland in question and hence, the said land was also to be considered asincluded in the lease chit. The Tribunal also found that the original SurveyNo. 119/2A was divided by stone, making it No. 119/2A1 and No. 119/2A2; and the first one, being No. 119/2A1 admeasuring 3.07 acres, wasin possession of the applicant whereas the other one, being No. 119/2A2admeasuring 1.64 acres, was in possession of the landlord.

10. Hereinabove, we have only indicated the relevant aspectsemanating from the findings of the Land Tribunal and it is but apparentthat the High Court, while dealing with the writ petition as also the writappeal has not adverted to such categorical findings of the Tribunal.

10.1. Apart from the above, it is also apparent that the High Courtdid not examine the definition of “land” as set out in Section 2(18) of theAct of 1961 to find if the land in question answers to the descriptiontherein.[2] The wide-ranging meaning assigned to the expression “land”

2 Section 2 (18) reads as under:-

(18) “land” means agricultural land, that is to say, land which is used or capable ofbeing used for agricultural purposes or purposes subservient thereto and includeshorticultural land, forest land, garden land, pasture land, plantation and tope but doesnot include house-site or land used exclusively for non-agricultural purpose;.

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Afor the purpose of the Act of 1961 makes it clear that the expressionrefers not only to the land which is actually used for agricultural purposesbut even to the land which is used or is capable of being used foragricultural purposes or even the purposes subservient thereto. On thefacts and in the circumstances of this case, the said definition deservesdue consideration while dealing with the challenge to the order made byBthe Tribunal.

11. In view of the aforesaid, where we find that the High Courthas 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 torequest the High Court to decide the writ petition afresh on merits and inCaccordance with law.

12. It is also noticed that while issuing notice in this matter on18.07.2008, this Court ordered status quo in relation to possession ofsubject of dispute to be maintained. While granting leave on 08.05.2009,the said interim order was confirmed until the disposal of this appeal. InDthe totality of circumstances of the case, it is also appropriate that suchinterim order remains in operation until final disposal of the writ petitionby the High Court.

13. In the interest of justice, it is also made clear that we have notexpressed any opinion on the merits of the controversy and theEobservations herein are relevant only for the purpose of our reasons forremanding the matter. Hence, the matter involved in the writ petitionremains open for decision afresh by the High Court on merits, withoutbeing influenced by any observation made in the orders impugned or inthis order.F

14. Hence, this appeal succeeds and is allowed to the extent andin the manner that the impugned orders dated 12.03.2008 and 17.11.2006are set-aside and Writ Petition No. 11344 of 1999 is restored forreconsideration of the High Court in accordance with law. Until finaldisposal of the writ petition, status quo in relation to possession of subjectGof dispute shall be maintained by all the parties. To put the record straight,it is also provided that the legal representatives of the respective parties,as substituted in this appeal, shall stand substituted in the writ petition andthe High Court shall proceed with the matter after amending the causetitle accordingly.

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MONTHI MENEZES (D) BY LR. v. DEVAKI AMMA (D) BY LR.[DINESH MAHESHWARI, J.]