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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:;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-
-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$l. ll9″1l’.’tE””.lfi”‘”l agricukm ‘ “” l ’31 Pulpese. The earlier Proceeéings
for eviction of the applicant from the
hoilee 4}sl:A1;:–1s been leased to the applicant before the
‘Lend ‘l’i’i3:;_t3.11al and there, no contention was taken that the
l”::i_efe:1
produced before the Tribunal in tht: :ia1’1i61f u
only after remand for the second tifiic
dateé 30.7.99 the saici allegecl V’i%e;:;i§>{:V_ciee§€i ‘Lg the
year 2002 and geni receigf is ‘§’;§~_on,¢’ VdE()es not
show tenancy as on that the
appiicants were c1’1}’£ij.ratiJ;zg’ and were 110$
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